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TRANSFERRED
TO
ILiyrinn n
^■K
INTERNATIONAL LAW
BY
GEORGE GRAFTON WILSON, Ph.D., LL.D.
FBOraSSOB OF INTBKirATZOHAL LAW, HABVABD UKIYBBSITT
MBMBBB OF THB INSTITUTB OF
DrTBBXATIOXAL ULW
EIGHTH EDITION
Earlier editions by George Orafton WiUon^ Ph,D.y LL.D.
and Oeorge Fox Ttkker, Fh.D.
SILVER, BURDETT AND COMPANY
NEW YORK NEWARK BOSTON CHICAGO
a.%
V.4—
/^arvardN
(universityI
LIBRARY
I 0CT20ia&37
OortaMBi, IMl, mo, ItU, UIB, UlT, im, bt
BILYIB, BUSDEIT ABD OOMPAtfT
PREFACE TO THE EIGHTH EDITION
In the preface to the sixth edition, 1915, was the statement " It
may not be too much to say that the development of inters
national law within the period since the call for the first Peace
Conference at The Hague in 1898 has been greater than during
the two hundred and fifty years preceding, from the Peace of
Westphalia in 1648 to the call for the Hague Conference in
1898." Since 1914 the principles thought to be generally ac-
cepted have been tested by war of unparalleled magnitude and
by the resulting unsettled international relations. During the
period of the war the assertion ^' International Law is dead "
was frequently heard, but the issue of the war showed the fal-
lacy of acting upon such a belief. Many of the differences be-
tween states still remained to be settled, but the evidence is
convincing that they must ultimately be settled in accordance
with law and justice.
This edition shows that, to a degree unexpected during the
strain of war, late decisions, precedents and practice have
followed principles long accepted.
Certain conventions and other documents have been inserted
in appendices in the conviction that it is more serviceable to
read the documents than to read lengthy opinions upon what the
documents may mean and also in order that the whole text
may be available for reference. The Covenant of the League
m
IV PREFACE TO THE FIRST EDITION
of Nations^ 1919^ the Statute of the Permanent Court of Inter-
national Justice, 1920, and the Treaty on Submarines and Nox-
ious Grases, 1922| will also be found in the appendices.
Dr. Tucker has offered valuable suggestions in the prepan^
tion of this editibn, but no longer continues as joint author.
G. G. W.
July, 1022.
«
PREFACE TO THE FIRST EDITION
The authors have freely used the substantive material as
found in cases, codes, etc., which involve the principles of
international law. Owing to the increasing importance of
international n^;otiation, relatively more attention than usual
has been given io matters connected with diplomacy. The
appendices contain material which the authors have found
advantageous tb have easily accessible to each student. The
study of this book should in all cases be supplemented by
reference to a considerable number of the books mentioned
in the bibliography.
G. G. W.
G. F. T.
Sbptbiebbb, lOOl.
CONTENTS
WAom
BIBUOGRAPH7 xv
ABBRSVIATIOHS OF CITATIONS ZfU
TABLB OF CASBS CITBD xiz
PART I
GENERAL AND HISTORICAL
CHAPTER I
DEFIHITIOH AHD OBRSRAL SCOPE S
1. Dbfinition.
2. DlYIfllONS.
3. ScoPB.
CHAPTER n
NATURE OF INTERNATIONAL LAW T
4. Eablt Tebminoloot.
5. HlSTOBICAL BaSBS.
6. Ethical Basbs.
7. Jural Bases.
8. International Law and Statute Law.
9. International Law and Law in General.
CHAPTER m
HISTORICAL DEVELOPMENT If
10. Early Period.
11. Middle Period.
12. Modern Period from 1648.
13. Influence of the United States.
14. Writers.
chapter iv
SOURCES OF INTERNATIONAL LAW St
15. Practice and Usage.
16. Decisions and Precedents.
N 17. Treaties and State Papers.
18. Text Writers.
19. Diplomatic Papers.
VI CONTENTS
PART II
PERSONS IN INTERNATIONAL LAW
CHAPTER V
PAOB
STATES 47
20. DEFiNTnoN OF A Statb.
21. CONDITIONB OF StATE EXISTENCE.
22. Recognition of New States.
CHAPTER VI
LEGAL PERSONS HAVING QUALIFIED STATUS . . . . S7
23. Members of Confedebations and Other Unions.
24. Neutralized States.
25. Protectorates, Suzerainties, Mandates.
26. Corporations.
27. Individuals.
28. Insurgents.
29. Belligerents.
30. COMMXTNinSS NOT FULLT ClVILUBD.
PART III
INTERNATIONAL LAW OF PEACE
CHAPTER Vn
GENERAL RIGHTS AND OBLIGATIONS OF STATES . . . 7S
31. Existence.
32. Independence and Interdependence.
33. Equality.
34. Jurisdiction.
35. Property.
36. Intercourse.
CHAPTER Vm
EXISTENCE 77
37. Application of the Right.
38. Extension of the Right to Subjects of the State.
CONTENTS vii
CHAPTER IZ
VAQB
xhdspbhdsiicb ahd mtbrdbpbndbhcb 81
39. Mannxb of Exebcisb of thb Right.
40. EuBOPEAN Baulncb of Powbb.
41. MONBOB DOCTBINB AND AmBBICAN PoUCIBS.
42. NON-INTBBVBNTION.
43. PBAcncB IN Rboabd TO Intbbvbntion.
CHAPTER Z
BQUALITT 07
44. Equautt of Staibs Extends only to Lboal Status.
45. Inbqualitibs among Statbs.
CHAPTER ZI
JURISDICTION ~ • lOT
46. JuBisDienoN in Gbnbbal.
47. Tbbbitobial Domain and Jubisdichon.
48. Mbthod of Acquisition.
40. QuALiFiBD Tbbbitobial Jubisdiction.
50. Mabitimb and Fluvial Jubisdiction.
51. Jubisdiction of Rivbbs.
52. The Navigation of Rivbbs.
53. Jubisdiction of Inclosbd Watbbs.
54. The Thbbb-milb Limit.
55. Jubisdiction ovbb Fishebibs.
56. Jubisdiction ovbb Vessels.
57. Aebial Jubisdiction.
58. Jubisdiction ovbb Pebsons and thb Qxtbstion of Na-
tionalitt.
50. Jubisdiction ovbb Natubal-bobn Subjects.
60. Jubisdiction ovbb Fobeign-bobn Subjects.
61. Jubisdiction bt Vibtub of Acquibed Nationalitt.
62. Jubisdiction ovbb Aliens.
63. ExBMPTioNs fbom Jubisdiction. — Gbnbbal.
64. Exemption of Sovebbigns.
65. Exemptions of State Officbbs.
66. Special Exemptions.
67. EhETBADmON.
68. SBBVITUDB9.
vm CONTENTS
CHAPTER Zn
PAOB
PROPBRTT iU
60. Propbbtt in Gxnebal.
70. Statb PbOpbbtt in International Law.
CHAPTER Zm
DIPLOMACY AND HfTERHATIOHAL RELATIONS IN TIMES OF
PEACE ICl
71. General Development of Diplomact.
72. Diplomatic Agents.
73. Suite, o^ Personnel of a Mission.
74. Who MaIt Send Diplomatic Agents.
75. Who Ma^ Be Sent as Diplomatic Agents.
-76. Credentials, Instructions, and Passport.
77. Diplomatic Ceremonial.
78. Immunities and. Privileges.
79. Functions of a Diplomatic Representattvb.
80. Termination of Mission.
81. DiPLOMAi^c Practice of the United States.
82. Consuls.
CHAPTER znr
TREATIES iOS
83. DEFINITldN OF A TrBATT.
84. Other Forms of International Agreements.
85. The NEGbrL^TiON of Treaties.
86. The VALtDmr of Treaties.
87. The Clarification of Treaties.
88. The Inti^rpretation of Treaties.
89. The TERkiNATiON of Treaties.
CHAPTER ZV
AMICABLE SETTLEMENT OF DISPUTES AND NON-HOSTILE
REDRESS m
90. The Amicable Settlement of Disputes.
91. Methods of Non-hostile Redress.
92. NON-INTEllCOURSE AND BOTCOTT.
93. RETORSIOif.
94. Reprisal^.
96. Embargo.
96. Pacific Blockade.
CONTENTS ix
PART IV
INTERNATIONAL LAW OF WAR
CHAPTBR ZVI
PAOB
WAR S85
97. DsriNrnoN of Wab.
08. Laws of War.
99. COMlfXNCEMBNT OF Wab.
100. Dbclabation and Notification of Wab.
101. Object of Wab.
102. Gbnebal Effects of Wab.
CHAPTER XVn
STATUS OF PBRSOHS IN WAR 146
103. Pebsons Affected bt Wab.
104. Combatants.
105. noncoicbatants.
chaptbr xviii
STATUS OF PROPERTY OH LAND .SSI
106. PuBUC Pbopebtt of the Eneiit.
107. Real Pbopebtt of Eneiit Subjects.
lOS. Pebsonal Pbopebtt of Eneiit Subjects.
CHAPTER XIX
STATUS OF PROPERTY AT SEA S89
109. Vessels.
110. Goods.
111. Submabinb and Radio Teleobapht.
CHAPTBR XX
COHDUCT OF HOSTILITIBS M9
112. Belligebent Occupation.
113. Fobbidden Methods in the Conduct of HosTiLmEs.
114. Pbtvateebs.
115. Voluntabt and Auxiuabt Nayt.
116. Abmed Mebchant Vessels.
117. Caftubb and Ransom.
118. AeAial Wabfabe.
119. Postliminium.
120. Pbisonebs and Theib Tbeatment.
121. Non-hostile Relations of Belligebent.
CONTENTS
PAOB
TERMHIATIOH OF WAR t9S
122. Methods of Termination of War.
123. Tbrbonation of Wab bt Conqxtest.
124. Termination of War by Cessation of Hostilttibs.
125. Termination of War bt a Treaty of Peace.
PART V
INTERNATIONAL LAW OF NEUTRALITY
DBFUfmOH Ain> history of NBUTRALITT .... 199
126. Definition of Neutrality.
127. Forms of Neutrality and of Neutrauzation.
128. History of Neutrality.
129. Declaration of Neutrality.
130. Two Classes of Relations between Neutrals and
Belligerents.
CHAPTER XXm
RELATIONS OF NEiriRAL STATES AlfD BELLIGERENT STATES 809
131. General Principles of the Relations between States.
132. Neutral Territorial Jurisdiction.
133. Regxtlation of Neutral Relations.
134. No Direct Assistance by the Neutral Allowed.
135. Positive Obligations of a Neutral State.
CHAPTER XXIV
NEUTRAL RELATIONS BETWEEN STATES AND INDIVIDUALS . SS6
136. Ordinary Commerce in Time of War.
137. Contraband.
138. Penalty for Carrying Contraband.
139. Unneutral Service.
140. Visit, Search, and Seizure.
141. Convoy.
•
142. Blockade and Other Restraints.
143. Violation of Blockade.
144. Continuous Voyages.
145. Angary.
146. Prize and Prize Coxtrts.
CONTENTS
XL
msTRUcnoHS for
THB UAITKD 8TATBS
APPENDIX I
OOVSRHMBHT
IN THE FIELD
OF AEMIBS OF
Section
I.
Sbction n.
Section III.
Section IV.
Section V.
Section VI.
Section VII.
Section VIII.
Section IX.
Section X.
Martial Law — Militart Jubisdiction —
MiLITABT NeCESSITT — RETALIATION.
Public and Private Property of the
Eneiit — Protection of Persons, and
Especially of Women; of Rbuoion,
THE Arts and Sciences — Punishment
of Crimes against the Inhabitants of
Hostile Countries.
Deserters — Prisoners of War — Hos-
tages— Booty on the Battlefield.
Partisans — Armed Enemies not Belong-
ing to the Hostile Army — Scours —
Armed Prowlers — War-rebels.
Safe-conduct — Spies — War-traitors —
Captured Messengers.
EbCCHANGE of PRISONERS — FlAGS OF TrUCE
— Abuse of the Flag of Truce —
Flags of Protection.
The Parole.
Armistice — Capitulation.
Assassination.
Insurrection — Civil War — Rebellion.
APPENDIX n
DECLARATION OF PARIS
APPENDIX m
CONVENTION FOR THE AMEUORATION OF THE CONDITION
OF THE WOUNDED IN ARMIES IN THE FIELD. GENEVA,
JULY %, 1906 TTTJii
The Sick and Wounded.
Sanitary Formations and Establishments.
Personnel.
Materiel.
Convoys of Evacuation.
Distinctive Emblem.
Application and Execution of the Con-
vention.
Repression of Abuses and Infractions.
Chapter
I.
Chapter
II.
Chapter
III.
Chapter
IV.
Chapter
V.
Chapter
VI.
Chapter
VII.
Chapter VIII.
pAoa
xil CONTENTS
APPENDIX IV
CONVENTION FOR THE PACIFIC SETTLEMENT OF INTER-
NATIONAL DISPUTES idi
Title I. On the Maintenance of the General Peace.
Title II. On Good Offices and Mediation.
Title III. On International Commibsions of Inquiry.
Title IV. On International Arbitration.
APPENDIX V
CONVENTION WITH RESPECT TO THE LAWS AND CUSTOMS
OF WAR ON LAND Iz
ANNEX TO THE CONVENTION — REGULATIONS RESPECTING
THE LAWS AND CUSTOMS OF WAR ON LAND Iziil
Section I. Belliqerentb.
Section II. Hostilities.
Section III. Militart Authoritt over Hostile Terri-
tory.
APPENDIX VI
CONVENTION RESPECTING THE RIGHTS AND DITTIES OF
NEUTRAL POWERS AND PERSONS IN CASE OF WAR
ON LAND Iziii
Chapter I. The Rights and Duties of Neutral
Powers.
Chapter II. Internment of Belligerents and Care
OF Wounded in Neutral Territory.
Chapter III. Neutral Persons.
Chapter IV. Railway Material.
Chapter V. Final Provisions.
APPENDIX Vn
CONVENTION RELATIVE TO THE STATUS OF ENEMY MER-
CHANT-SHIPS AT THE OUTBREAK OF HOSTILITIES Izzvi
APPENDIX Vm
CONVENTION FOR THE ADAPTATION TO NAVAL WAR OF
THE PRINCIPLES OF THE GENEVA CONVENTION . Izzviii
APPENDIX IX
CONVENTION WITH REGARD TO THE EXERCISE OF THE
RIGHT OF CAPTURE IN NAVAL WAR .... Izzzui
Chapter I. Postal Correspondence.
Chapter II. The Exemption from Capture of Certain
Vessels.
CONTENTS HU
Chapter III. Regttlaitons Reoardinq the Cbbwb of
Enemy MERCHANTv«mFB Captured bt
A Belligerent.
Chapter IV. Final Proyibions.
APPENDIX X
PAOB
COHVBVnON CONCBRimiG THE RIGHTS AND DUTIES OF
NEUTRAL POWERS IN NAVAL WAR ..... Izzsvi
APPENDIX XI
zdi
Chapter
1 \^jr
I.
Blockade in Time or War.
Chapter
II.
Contraband of War,
Chapter
Ill,
Unneutral Service.
Chapter
IV,
Destruction of Neutral Prizes.
Chapter
V.
Transfer of Flag.
Chapter
VI.
Enemy Character.
Chapter
VII.
Convoy.
Chapter VIII.
Resistance to Search.
Chapter
IX.
Compensation.
APPENDIX Xn
TREATY IN RELATION TO THE USE OF SUBMARINES AND
NOXIOUS GASES IN WAR cvU
APPENDIX Xm
COVENANT OF THE LEAGUE OF NATIONS .... cz
APPENDIX XIV
STATUTE OF PERMANENT COURT OF INTERNATIONAL
JUSTICE czzii
APPENDIX XV
UNITED STATES NEUTRALITT LAWS czzziv
APPENDIX XVI
PROCEDURE IN PRIZE COURT czzzvlli
APPENDIX XVn
DIGEST OF IMPORTANT CASES ARRANGED UNDER TITLES czlv
INDE9 , , , dviU
BIBLIOGRAPHY
Tbib brief list containfi the titles of books of reference and of those most
frequently cited in the following pages :
Abioa, N. La Guerre Sino-Japonaise au point de vue du droit inter-
national. 1896.
La Guerre Russo-Japonaise. 1008.
Bluntsghu, J. C. Le Droit International. (Lardy and Rivier), 1895.
BoNFQjB. Droit International Public. 8th ed. (Fauchille), 1921.
BoRCHABD, £. M. Diplomatic Protection of Citixens Abroad. 1915.
BuTUBB, C. H. Treaty-making Power of the United States. 2 vols. 1902.
Calto, Ch. Droit International. 5th ed. 6 vols. .1896.
GoBBBTT, Prrr. Leading Cases and Opinions on International Law. 3d
ed. 1909-1913.
Cbandall, S. B. Treaties, Their Making and Enforcement, 2d ed. 1916.
Dahloben, J. A. Maritime International Ijaw. 1877.
Davis, G. B. The Elements of International Law. 4th ed. (Sherman),
1917.
Despaonbt. Droit International Public. 4th ed. (de Boeck), 1910.
Evans, L. B. lieading Cases on International Law. 1917.
Field, D. D. Outline of an International Code. 1876.
FioBE, P. Nouveau Droit International Public. 1886.
Gabnkb, J. H. International Law and the World War. 2 vols. 1920.
GRonuB, H. De Jure Belli ac Pacis. (1625) 3 vols. (Whewell), 1853.
Ball, W. E. International Law. 7th ed. 1917.
Hauxck, H. W. Elements of International Law. 4th ed. (Baker),
1908.
Habt, a. B. The Monroe Doctrine. 1916.
HsFFTEB, A. W. Das Europ&ische Volkerrecht der Gegenwart. 5th ed.
(Geffcken), 1888.
Hebshet, a. S. Essentials of International Public Law. 1912.
Hebtblbt, E. Map of Europe by Treaty, 1815-1891 . 4 vols. 1875-1891 .
HioGiNS, A. P. The Hague Peace (inferences. 1909.
Holland, T. E. Studies in International Law. 1898.
HoLLS, F. W. The Peace Conference at The Hague. 1900.
HoBACK, J. Rise and Growth of the Law of Nations. 1882.
ICent, J. Commentaries on American Law. 14th ed.
Lawbence, T. J. Principles of International Law. 4th ed. 1910.
Lbhb, E. Manuel des Agents Diplomatiques et (Ik)nsulaires. 1888.
Maine, H. International Law. 1888.
Mabtbnb, F. de. Traits de Droit International. 3 vols. 1883-1887.
M£rignhac, A. Traits de Droit International Public. 2 vols. 1905-1907.
XV
XVI BIBLIOGRAPHY
MoNNET, R. Manuel Diplomatique et CoDsulaire.
MooEffi, J. B. Extradition and Interstate Rendition. 2 vols. 1891.
International Arbitrations. 6 vols. 1898.
International Law Digest. 8 vols. 1906.
Principles of American Diplomacy. 1918.
Nts. Le Droit International. 2d ed. 3 vols. 1912.
Oppbnheim, L. International Law. 2 vols. 3d ed. 1920.
Ortolan, T. Diplomatie de la Mer. 4th ed. 2 vols. 1864.
Perels, F. Das intemationale offentliche Seerecht der Gegenwart. 1903.
Phillimore, R. International Law. 3d ed. 1879-1889.
Phillipson, C. Termination of War and Treaties of Ptoce. 1916.
Pradier-Fod£r£, p. Traits de Droit International Public Europden et
Am^cain. 8 vols. 1885-1897.
RiviER, A. Principes du Droit des Gens. 2 vols. 1896.
Satow, E. Guide to Diplomatic Practice. 2 vols. 1917.
Scott. Cases on International Law. 1902.
Texts of the Peace Conferences at The Hague, 1899 and 1907. 1908.
Snow, F. American Diplomacy. 1894.
International Law, Naval War College. 2d ed. 1898.
Spaioht, J. M. War Rights on Land. 1911.
Aircraft in War. 1914.
Aircraft in Peace. 1919.
Stockton, C. H. Outlines of International Law. 1914.
Stowell and Munro. International Cases. 2 vols. 1916.
Stowell, E. C. Intervention in International Law. 1921.
Takahashi, S. Cases on International Law, Chino-Japanese. 1896.
International Law Applied to the Russo-Japanese War. 1908.
Taylor, H. International Public Law. 1901.
Treaties and Conventions between the United States and Other Powers,
1776-1909. Vols. 1 and 2. MoUoy. 1910-1913. Vol. 3. Charles.
Twiss, T. Rights and Duties of Nations in Time of War. 2d ed. 1875.
Ullmann, G. V6lkerrecht. 1898.
United States Naval War College. International Law Publications,
vol. 1901, Moore, J. B. ; 1902, Wilson, G. G.
Vattel, E. Law of Nations. Trans. Ingraham. 1876.
Walker, T. A. Science of International Law. 1893.
Manual of Public International Law. 1895.
History of the Law of Nations. Vol. I. 1899.
Westlake, J. International Law. 2 vols. 1904-1907.
Wheaton, H. Elements of International Law. 1836.
Edited by Lawrence, W. B. 1863.
Edited by Dana, R. H. 1866.
Edited by Atlay. 4th ed. 1904.
Wilson, G. G. International Law. 1910.
Hague Arbitration Cases. 1915.
WooLSET, T. D. International Law. 6th ed. 1891.
ABBREVIATIONS OF CITATIONS
The foUowing are the important abbreviatiooB of citations :
A. J. I. L American Journal of International Law, 1907-*.
Ann. Cyd Appleton's Annual CyclopoKlia.
Annuaire Annuaire de Tlnstitut de Droit International,
1877-
Br. & For. St. Pap. . . British and Foreign State Papers.
Brussek Code .... Conference at Brussels, 1874, on Military
Warfare.
Or Cranch's United States Reports.
C. Rob Chr. Robinson's English Admiralty Reports.
Fed. Rep Federal Reporter.
Gould & Tucker . . . Gould and Tucker's Notes on the United
States Statutes.
Hall HaU's International Law (6th ed.).
Hertslet Hertslet Map of Europe by Treaty.
How Howard United States Reports.
Instr. U. S. Annies . . Instructions for the Government of Annies of
the United States in the Field.
Kent's Com Kent's Conmientaries (14th ed.).
Lawrence Lawrence's Principles of International Law.
Moore International Law Digest.
N. W. C U. S. Naval War College, International Law
Publications, 1901-.
Pet Peters's United States Reports.
Schuyler Schuyler's American Diplomacy.
Scott Cases on International Law.
Treaties 1 and 2 Molloy ; Treaties and Conventions of
the United States, 1776-1910 ; 3 Charles, ibid,
1910-1913,
U. S United States Supreme Court Reports.
U. S. Com. Sts. . . . United States Compiled Statutes.
U. S. For. Rel United States Foreign Relations.
U. 8. Rev. Sts United States Revised Statutes.
U. S. Sts. at Laige . . United States Statutes at Large.
Wall Wallace, United States Reports.
Wheat Wheaton's United States Reports.
Wheat. D Wheaton's International Law (Dana's edition).
xvii
TABLE OF CASES CITED
AlAbama. llie, 322, Ci.
Alcinous V. Nigreu, 249, czlvii.
Alexandra, The, d.
Anna, The, 112.
Anne, The, 311.
Appam, The. 318, oxlix.
Atalanta. The, 336, dvi.
Berlin, The, 259.
Bermuda, The, 362, clvi.
Bolton V. Gladstone, 40, czlv.
Brown V. United States, 253, czlvii.
Buena Ventura, The, 32.
Caroline, The, 77, 312, oxlix.
Chesapeake, The. 150.
Commeroen, The, 331, div.
Constitution, The, 145.
Cooley V. Golden, 112.
Dada, The, 261.
Ezdianise v. M'Faddon, 145, diL
Florida, The, d.
Foster v. NeHson, 53.
Friendship, The, dv.
Gen. Armstrong, Case of the, 311.
Georgia, The, d.
Grotius, The, 279, cxlvii.
Hanger v. Abbott, 296.
Haroourt «. Gaillard, 49, czlv.
Huasear, The, 64.
In re Castioni, 150.
In the Matter of Metiger, 148, ozlvi.
Itala. The, 64.
Janson v. Driefontein Mines, 249.
Jones V. United States, 53, czlvi.
Jonge Tobias, The, div.
Juffrow Maria Sdiroeder, dvi.
Kim, The, 355.
Eossta, The Case of, 137.
Kow-Shing, 338, dv.
La Manche, The, 488, 358, dvii.
Leonora, The. 349.
Magnus. The. dv.
Maria, The, 338, 352, dvii.
Marianna Flora, The, 339.
M*IIvaine v. Coze's Lessee, 49,
Missouri v. Nebraska, 112.
Montesuma, The, 64.
Nebraska v. Missouri, 112.
New Orleans v. Abbagnato, 78.
Oroaembo, The, 337, dv.
Pampero, The, d.
Paquete Habana, 11, 43.
People «. McLeod, czlix.
Peterhoff. The, 329, div.
Porter v. Freudenberg, 249.
Prise Cases, 237, 353.
Regina v. Keyn, 122.
Sanches v. United States, 296.
Santa Crus, The, 37, czlviii.
Santiasima Trinidad, The, 75.
Sea Lion. The. 288. czlviii.
Shenandoah, The, d.
Sir WiUiam Peel, The, 358.
Sophie. The, 296.
Springbok, The, 358.
State of Mississippi v. Johnson, 53,
czlvi.
Stephen Hart. The, 353, dvi.
Strousberg v. Costa Rica, 143.
Swineherd, Case of the, 296.
Three Friends. The, 63, 299.
Toscano, ez parte, 64.
Twee Qebroeders, The, 311, czlix.
Tubantia, The, 222.
Two Friends, The, 283. czlviii.
United States v. Ambrose Light. 64.
United States v. Baker, 273, czlvii.
United States v. Rauscher, 40, czlv.
United States v. Rodgers, 117.
Vavasseur v. Krupp, 143.
Venus, The, 287, czlviii.
Virginius, The, 77.
West Rand Gold M. Co. v. King, 11.
Wildenhus's Case, 129, czlvi.
Williams v. Suffolk Insurance Com-
pany, 53. czlv.
WiUiam, The, 352, dvii.
Zamora, The, 11, dvii.
PART ON]B
GENERAL AND HISTORICAL
OUTLINE OF CHAPTER I
DEFmrrioN and general scope
1. SUBJECT-MATTER OF INTERIVATIONAL LAW.
(a) From the philosophical standpoint.
(b) From the scientific standpoint.
S. DIVISIONS.
(a) PubUc international law.
(b) Private intematiooal law.
S. SCOPE.
INTERNATIONAL LAW
CHAPTER I
DEFINITION AND GENERAL SCOPE
1. Definitioii
Intebnational law ^ may be considered from two points of
view, viz. : —
(a) From the philosophical point of view, as setting forth
PfaOoBopUcia ^® ^^ *"^ principles which ov^tU to be observed
and idMitiiic , in interstate relations.
(6) From the scientific point of view, as setting
forth the rules and principles which are generally observed
in interstate relations. >
Early writers treated especially of those principles which
ought to be observed in interstate action, and the wealth of
quotation and testimony introduced to establish the validity
of principles now considered almost axiomatic is overwhelm-
ing. In the days of Ayala, Brunus, Gentilis, Grotius, and
Pufendorf , all the argument possible was needed to bring states
to submit to these principles. The conditions and relations of
states have so changed that at the present time a body of fairly
>Wheaton'8 definition vb (Wheaton D., 23) : " International law, as under-
stood among dviliied nations, may be defined as consisting of those rules of
conduct which reason deduces, as consonant to justice, from the nature of the
society emwting among independent nations ; with such definitions and modifi-
cations as may be established by general consent." (See also 1 Pradier-Fod6r§,
pp. 8. 41.)
8
4 INTERNATIONAL LAW
established rules and principles is observed in interstate action,
and fonns the subject-matter of international law.^
2. Divisions
International law is usually divided into : —
(a) Public international law, which treats of the rules and
principles which are generally observed in interstate action,
and
(6) Private international law, which treats of the rules and
Public and principles which are observed in cases of conflict
priTftte inter- of jurisdiction in regard to private rights. These
national law. . . • i i ■
cases are not properly international, and a better
term for this branch of knowledge is that given by Judge
Story, " The Conflict of Laws."*
International law, in the true sense, deab only with state
affairs.
3. Scope
International law is generally observed by civilized states;
some states, even before they were fully opened to western civ-
ilization, professed to observe its rules.' The expansion of
commerce and trade, the introduction of new and rapid means
of communication, the diffusion of knowledge through books
and travel, the establishment of permanent embassies, the
making of many treaties containing the same general provi-
sions, and the whole movement of modern civilization toward
unifying the interests of states, has rapidly enlarged the range
of international action and the scope of international law.
Civilized states, so far as possible, observe the rules of inter-
national law in their dealings with uncivilized communities
^Hall, introductory chapter.
'Diceyf " Conflict of Laws," English, with notes of Amerioan cases, by J. B.
Moore.
*Wheaton*s " International Law/' translated and made a tezt-book for
Chinese officials in 1864.
DEFINITION AND GENERAL SCOPE 5
which have not yet attained to statehood. International law
covers all the relations into which civilized states may come,
both peaceful and hostile. In general, its scope should not be
extended so as to interfere with domestic affairs or to limit
domestic jurisdiction, though it does often limit the economic
and commercial action of a given state, and determine to some
extent its policy.
OUTLINE OF CHAPTER H
NATURE OF INTERNATIONAL LAW
4. BARL7 TERMUfOLOGT.
(a) Use of the term jus natiirale.
(b) Jus gentium defined.
(c) Use of other terms.
6. HISTORICAL BASBS.
6. ETHICAL BASES.
7. JURAL BASES.
(a) Sanction of Roman law.
ib) Ethical influence of canon law.
(c) Practical influence of common law.
(d) Equity and recognition of principles.
(e) Admiralty law and maritime relations.
8. INTERNATIONAL LAW AND STATUTE LAW.
9. INTERNATIONAL LAW AND LAW IN GENERAL.
6
CHAPTER n
NATURE OF INTERNATIONAL LAW
4. Early Tenniiiology
The conception of those rules and principles of which inter-
national law treats has varied greatly with periods, with con-
ditions, and with writers.
The early terminology indicates the vagueness of the con-
ceptions of the principles governing the conduct of man toward
his fellows.
(a) Jus naiurale is defined broadly by Ulpian^ as "the
law which nature has taught all living creatures, so as to be
«T ^^ conunon to men and beasts." Grotius also
tarmjM uses this term, defining it as "the dictate of
^ right reason, indicating that any act from its
agreement or disagreement with rational nature has in it moral
tiupitude or moral necessity, and consequently such act is
either forbidden or enjoined by God, the author of nature." '
Lieber says " The law of nature, or natural law ... is the law,
the body of rights, which we deduce from the essential nature of
man." ' The discussion of jus naiurale has been carried on from
an early period,^ covering many portions of the field of modern
international law, and making possible the broadening and
strengthening of its foundation.
(fc) Ju8 gentium, according to Justinian, is "that which
natural reason has established among all men, that which
1 " Institates," I, 1, 1. * " De Jure Belli/' Bk. I. Ch. I, ( 10.
> " Political Ethics," 2d ed., I. p. 68. * Maine, '* Ancient Law/' Ch. IV.
7
8 INTERNATIONAL LAW
all peoples uniformly regard/'^ ^* Jus gentium is common
to the whole hmnan kind." ' This idea of a body of law common
Jus conthiiii to all men assumed a different meaning when
*****^- states multiplied, and writer after writer re-
defined and qualified its meaning. Jtuf gentium became the
subject of many controversies.' Among the qualifying terms
were " internal," " necessary," " natural," " positive."
(c) Other terms were used to name the field or portions of
the field of modern international law. Jua fetiale applied
Use of particularly to the declaration of war and sane-
other termi. ^Jqjj ^f treaties.* Jus inter gentes was used by
Zouch in 1650 to name the real field of international law. Law
of nations was the term conunonly used in England till the days
of Bentham ; since that time the term international law, which
he adopted, has steadily grown in favor, until it has come into
almost universal use in English-speaking countries.^
The change in terminology shows in a measure the progress
in demarking the field of international law.
6. Historical Bases
International law in its beginning may have been largely
determined by abstract reasoning upon what ov^ht to be the
principles and rules governing interstate relations; but in its
later development, as it has become more and more recog-
nized as a safe guide for the conduct of states in their relations
with other states, direct investigation of what is has deter-
mined the character of the rules and principles. What is
state practice in a given case can be determined only by refer-
ence to history. From the history of cases and practice, the
» •• Institutes," I. 2. 1.
* Ibid., I, 2. 2.
» Heflfter. ** Volkerrecht." ( 2.
* Cicero, " De Republica." 2. 17.
* Droii inienuUioTuU is the French term, subsequently adopted.
NATURE OF INTERNATIONAL LAW 9
general rule and principle is derived, and modem international
law thus comes to rest largely upon historical bases.
6. Efliical Bases
While international law now looks to history as one of its
most important bases, it must nevertheless accord somewhat
dosely with the ethical standards of the time, and will tend
to approximate to them. The growth of the body of law upon
slavery has rested on both ethical and historical bases. Inter-
national law b principally an output of civilized nations having
certain ethical standards. Such ancient practices as the giving
of hostages for the fulfillment of treaty stipulations have dis^
appeared, and ethical bases are generally recognized in de-
termining practice.^ While these ethical bases should be
recognized, international law cannot be deduced from subtle
reasoning upon the abstract ideas of what it otight to be. Modem
mtemational law treats mainly of what is, but what is in inter-
national relations is always conditioned by a recognition of
what ovght to be.
7. Jural Bases
The nature of modern international law is in part due to
the jural bases upon which it rests.
(a) The Roman law was the most potent influence in de-
termining the early development, particularly in respect to
Saactioiief dominion and acquisition of territory. Inter-
Ronan i*w. national law gained a certain dignity and weight
from its relation to the Roman law, the most potent legal
institution in history.
(b) The canon law, as the law of the ecclesiastics who were
supposed to recognize the broadest principles of human unity,
gave an ethical element to early international law. Gregory IX
1 La0t hostages given in Europe 1748, by England to Franoe.
10 INTERNATIONAL LAW
(1227-1241), the Justinian of the Church, reduced canon law
to a code. The abstract reasoning upon its principles among the
clergy and counselors of kings, made it a part of the mental
Ethical infltt- stock of the earfy text writers, while it strongly
ence of canon influenced state practice. The canon law gave
a quasi-religious sanction to its observance, and
in so far as international law embodied its principles, gave the
same sanction to the observance of international equity. This
may be seen in the religious formula in treaties, even to a late
date.
(c) The conmion law, itself international as according to
Practical infl tradition, derived by Edward the Confessor
ence of com- from three systems, and subsequently modified
^' by custom, furnished a practical element in
determining the nature of international law.
(d) Equity promoted the development of the recognition
of principles in international law. In the early days of Eng-
E uitT and '*^^ cases arose which were not within the cog-
recognition of nizance of the conmion law judges. The peti-
FTincipiee. tioner having applied to the king in Parliament
or in coimcil for justice, his petition was referred to the chan-
cellor, the keeper of the king's conscience, who, after a hearing,
required that what was equitable should be done. Thus the
simpler matters came before the conmion law court, the more
difficult before the equity court. Even now a jury largely
deals with questions relating to the recovery of money, and their
decision is a verdict, which is followed by a judgment. In an
equity court, the more difficult problems of business and com-
merce are considered ; and the decision of the judge is a decree.
(e) Admiralty law may be defined as in one sense the law
Admiralty la ^^ ^^® ^^** Anterior to and during the Middle
and maritime Ages, the maritime relations of states gave rise
"■• to sea laws, many of which are to-day well-recog-
nized principles of international law.
NATURE OF INTERNATIONAL LAW 11
8. Jnternatioiial Law and Statute Law
Statute law proceeds from legislative enactment, and is
enforced by the power of the enacting state within its juris^
diction.
International law, on the other hand, is not formally enacted,
and has no tribunal with an effective sanction for its enforce-
ment. In case of infraction of its rules nations may resort to
war, when the issue may rather depend upon the relative
strength of the two states than upon the justice of the cause, or
the states may agree to refer their differences to some form of
adjudication by an international tribunal.
9. Jntemational Law and Law in General
If law is defined, as by Austin, '' a rule laid down for the
guidance of an intelligent being by an intelligent being having
power over him," ^ it would not be possible to include under it
international law without undue liberality in the interpretation
of the language.
In form, however, law is a body of rules and principles in
accord with which phenomena take place. If these rules, as
enunciated by the state in case of statute law, are not followed,
certain penalties are inflicted. The nature of the penalty must
to a great extent depend on the source of the law. International
law is the body of rules and principles relating to interstate
phenomena. Violations of international law are not followed
by the same penalties as those of statut^ law, as international
law does not have the same source nor a similar tribunal
for its enforcement. International law is, however, in form
law and in practice so regarded.'
> " Lectures on Jurispnidenoe," I.
* Walker, '* Scienoe of International Law.'* Cha. I and 11. fuUy diseuBses
Austin's definition. For decisions of the highest courts see West Rand Gold
Mining Co. 9. The King, L. R. 2 K. B. (1905), 391 ; The Paquete Habana
(1900), 175 U. 8. 677; The Zamora (1916), 2 A. C. 77.
OUTLINE OF CHAPTER HI
HISTORICAL DEVELOPMENT
10. EARLY PERIOD.
(a) Recognition by Greece of international obligations.
(p) Rome's contribution to international law
U. MIDDLE PERIOD.
(a) Supremacy of Roman Empire.
(p) Unifying influence of the Church.
(c) Feudalism and the territorial basis of sovereignty.
(d) Crusades and a broader basis of comity.
(e) Chivalry and a basis of equitable dealing.
</) Expansion of commerce and the development of maritime codes .
(g) Consuls and the development of maritime law.
(h) Discovery of America.
(t) Contributions of the Middle Period.
18. MODERN PERIOD FROM 1648.
(a) 1648-1713 : Development of principles.
(6) 1718-1816: Testing of principles.
(c) 1816-1888: Practical application of principles.
(<f) 1888 to 1914 : Progress toward international peace.
(1) The First Peace Conference at The Hague.
(8) Results of the First Peace Conference.
(8) The Second Peace Conference at The Hague and its
conventions.
(4) The International Naval Conference of 1908-1909, and
Declaration of London.
(6) Contributions in this period to international law.
(e) 1914 to present time : New tests.
13
14 INTERNATIONAL LAW
IS. INFLUENCB OF THE UNITED STATES.
(a) The regulatioiis of 1793 in regard to neutrality.
(6) Freedom of commerce and navigation.
(c) Open-door policy in the Far Bast
(d) Protection of legitimate rights of citizens.
(e) Contributions to establishment of laws of war.
(/) Advocacy of peaceful settlement of international
(a) The United states and the Wodd War.
14. WRITERS.
(a) Life and work of Hugo Grotius (1688-1646).
(6) Other authorities on international law.
CHAPTER III
HISTORICAL DEVELOPMENT
10. Early Period
The history of the development of those rules and principles
now considered in international law naturally falls into three
periods, early, middle, and modern.^
The early period dates from the development of early Euro-
pean civilization, and extends to the beginning of the Christian
Era. During this period the germs of the present system
appear.'
(a) The dispersion of the Greeks in many colonies which
became practically independent conmiunities gave rise to
systems of intercourse involving the recognition
Grecee of inter- of general obligations.' The maritime law of
n^s' ®^^ Rhodes is an instance of the general acceptance
of conmion principles. The main body of this
law has not survived, yet the fragment appearing in the Digest,
De Lege Rhodia de Jactu,^ is, after more than two thousand
1 Bluntschli, " V5lkerrecht," Introduction ; Lawrence, ( 20.
> Walker. " Science of International Law," Ch. Ill, p. 58. " But when,
beade the vague and fleeting World Law, the law of all humanity, was recognised
a law special to certain peoples, when the distinction was drawn between the
progreasive and the stationary, between civilisation and barbarity, when the
Greek noted rd p6fUfM rwr 'EXX^^rwr, and the Roman felt the ties of a particular
Jua FetiaU and a particular Jub Belli, International Law cast off its swaddling
banda, and began its walk on earth."
>Cioero. " Pro Lege Manilla." Ch. XIII.
4 Justinian, Digest, 14. 2, " If goods are thrown overboard to lighten the ship.
Si this 18 done for the sake of all, the loss shall be made good by a contribution
ofalL"
16
16 INTERNATIONAL LAW
years, the basis of the present doctrine of jettison. It is reason-
able to suppose that though the words of other portions of the
Rhodian law are lost, the principles may have entered into
formation of later compilations. The recognition by Greece
of the existence of other independent states, and the relations
into which the states entered, developed crude forms of inter-
national comity, as in the sending and receiving of ambassadors ^
and the formation of alliances.^
(b) Rome made many contributions to the principles of
international law in the way of the extension of her own laws
R • tri- ^ wider spheres, and in the attempt to adapt
btttion to inter- Roman laws to conditions in remote territories.
°* ^" In this early period Rome may be said to have
contributed to the field of what is now considered private inter-
national law rather than to that of public international law.
Wherever Rome extended her political rule, she adapted her
laws to the peoples brought under her sway. This is evident
in the laws in regard to marriage, contract, property, etc. The
dominance of Rome impressed her laws on others, and extended
the influence of those principles which, from general practice,
or conformity to accepted standards, gained the name Jus
Gentium}
^ Bluntschii, '* Vdlkerrecht,*' Introduction ; Thucydides, '* Peloponnesian
War," II, 12, 22, 29.
* The Amphictyonic League recognised some principles of interstate right
and comity, as well as preserved Grecian institutions and religious traditions.
This is shown in the oath of the members, " We will not destroy any Amphic-
tyonic town nor out it off from running water, in war or peace ; if any one shall
do this, we will march against him and destroy his city. If any one shall plunder
the property of the god, or shall be cognizant thereof, or shall take treacherous
eounsel against the thinn in his temple at Delphi, we will punish him with foot
and hand and voice, and by every means in our power." They also agreed to
make and observe humane rules of warfare. See also Darby. " International
Tribunals," p. 1.
* Maine, *' Ancient Law," Ch. III. The idea as to what jua Qentium was
of course varied with times. Under the Empire it lost it.s old meaning. See
Cicero, " De Officiis," III, 17; Livy. VI, 17; IX. U; I. 14; V. 36; SaUust,
" BeU. Jug.." XXn ; Tacitus. " Ann.," 1. 42; " Quintus Curtius," IV, 11, 17.
HISTORICAL DEVELOPMENT 17
11. Middle Period
The varied struggles of the middle period — from the be-
gmning of the Christian Era to the middle of the seventeenth
century — had a decided influence upon the body and form of
international law.
(a) The growth of the Roman Empire, as the single world-
power and sole source of political authority, left small need
BapntDMCf of ^' international standards. The appeal in case
Roawn Empire, of disagreement was not to such standards, but
to Caesar. The idea of one conmion supremacy was deep-
rooted. Political assimilation followed the extension of politi-
cal privileges.
(b) A similar imifying influence was found in the growth
of the Christian Church, which knew no distinction — bond or
- ^- free, Jew or Gentile. Christianity, called to be
•DMoftiM the state religion early in the fourth century,
modeled its organization on that of the Roman
Empire; and from the sixth century, with the decay of the
Empire, the Church became the great power. The belief in
the permanent continuance and universality of Roman dominion
was strengthened by the Church, although materially changed
in its nature.^ Whatever the inconsistencies in Church and
State during the first ten centuries of our era, there had grown
up the idea, of great importance for international law, that
there could be a ground upon which all might meet, a belief
which all might accept, both in regard to political and religious
organization. For five hundred years before the days of
Boniface VIII (1294-1303), the holder of the papal office had
from time to time acted as an international judge.
The canon law codified by Gregory IX (1227-1241), was
planned to rival the Corpus Juris Civilis. The Popes, with
varying degrees of success, tried to render such international
1 Bryoe, " Holy Roman Empire," Ch. VII.
18 INTERNATIONAL LAW
justice as the discordant elements introduced by the growth
of cities and rise of nationalities demanded.^ From the Coun-
cil of Constance (1414r-1418), which was a recognition of the
fact of nationality^ and at which the emperor for the last time
appeared as the great international head, the decline of both
the Church and the Empire as direct international factors
was rapid.
(c) By the eleventh century feudalism had enmeshed both
the temporal and spiritual authorities. This system, closely
related to the possession of land and gradation
tiie tenitorifti of classes, discouraged the development of the
^****dlnty ideas of equality of state powers necessary for
the development of international law, though
it did emphasize the doctrine of sovereignty as based on land
in distinction from the personal sovereignty of earlier days.
{d) The Crusades (1096-1270), uniting Christendom against
the Saracen for foreign intervention, awakening Europe to
^j^^- a new civilization, expanding the study and
broader bMis practice of the Roman law which feudal courts
^ ^' had checked, weakening many feudal overlords,
enfranchising towns, freeing the third estate, spreading the
use of the Latin language, enlarging and diversifying com-
merce, teaching the possible unity of national interests, led
to the apprehension of a broader basis in comity which hastened
the growth of interstate relations.*
(e) The code of chivalry and the respect for honor which it
Chivairv d enjoined introduced a basis of equitable dealing
bMis of eqisi- which on account of the international character
** * 'of the orders of chivalry reacted upon state prac-
tice throughout Christian Europe.
1 Bryce, " Holy Roman Empire," Chs, VII and XV. The " Tnioe of God,"
introduced by the clergy (1034), left only about eighty days in a year for fighting
and settling feuds.
* On effects of Crusades, see Milman, " Latin Christianity," VII, 6 ; Hallam,
*' Middle Ages/' Ch. III. Pt. I ; Bryoe, " Holy Roman Empire." Chs. XI. XIII.
HISTORICAL DEVELOPMENT 19
(f) The expansion of commerce, espedaOy maritime, em-
phasized the duties and rights of nations. The old Rhodian
laws of commerce, which had in part been in-
*''""**^ ^A corporated in and expanded by the Roman code
the develop- during the days before the overthrow of the
^am oodee. Empire, formed a basis for maritime intercourse.
From the fall of the Empire to the Crusades
commerce was attended with great dangers from pirates on the
sea and from exactions in the port. The so-called Amalfitan
Tables seem to have been the sea law of the latter part of the
eleventh century. The much more detailed Consolaio del Mare,
probably issued in Barcelona in the fourteenth century, de-
rived some of its principles from earlier codes. The ConsoUUo
was recognized by nuuitime powers as generally binding, and
made possible wide conmiercial intercourse. Many of its
principles have stood to the present day, though touching such
questions as the mutual rights of neutrals and belligerents on
the sea in time of war. As the Coneolaio formed the code of
Southern Europe, the Lawe of OlSron formed the maritime code
for Western Europe, and were compiled the latter part of the
twelfth century, whether by Richard I or by his mother, Queen
Eleanor, is a disputed question. These laws are based in large
measure on the other existing systems. The Laws, of Wisby,
dating from about 1288, supplemented the Latos cf OlSron, and
formed the fundamental law of maritime courts of the Baltic
nations.^ The Hanseatic League in 1591 compiled a system
of marine law, Jvs Hanseaticum MarUimum,^ based on the codes
of Western and Northern Europe. The maritime law of Europe
had been practically imchanged for nearly a hundred years,
when systematized in 1673 under Louis XIV. Similar to the
maritime codes are the " Customs of Amsterdam," the " Laws
of Antwerp," and the " Guidon de la Mar."
^ Laws of Wisby contain early reference to marine insurance, 1 66. 1 Pat.
Adm. App. LXVn. • Expanded in 16U. Jhid., App. XCIII.
20 INTERNATIONAL LAW
(g) Closely connected with the development of maritime law
during the latter part of the middle period was the establish-
^ ... ment of the office of consul. The consuls, under
Consttlfl And the
deyeiopment of the title of consvles marinariorum et mercatorum,
* ^' resident in foreign countries, assisted by advice
and information the merchants of their own countries, and
endeavored to secure to their countrymen such rights and
privileges as possible. Consuls seem to have been sent by Pisa
early in the eleventh century, and were for some time mainly
sent by the Mediterranean countries to the East.
(h) The discovery of America marked a new epoch in ter-
ritorial and mercantUe expansion, and introduced
SSriT ""' ^^^ problems among those handed down from an
age of political chaos.
{{) The middle period, with all its inconsistencies in theory
and practice, had nevertheless taught men some lessons. The
Contribttti world-empire of Rome showed a common political
of the sovereignty by which the acts of remote terri-
*** tories might be regulated; the world-religion
of the Church of the middle period added the idea of a com-
mon bond of humanity. Both of these conceptions imbued
men's minds with the possibility of a imity, but a unity in
which all other powers should be subordinate to a single power,
and not a unity of several sovereign powers acting on es-
tablished principles. The feudal system emphasized the terri-
torial basis of sovereignty. The Crusades gave to the Chris-
tian peoples of Europe a knowledge and tolerance of one
another which the honor of the code of chivalry made more
beneficent, while the growth of the free cities opposed the
dominance of classes, feudal or religious. The fluctuations and
uncertainties in theory and practice of international intercourse,
both in peace and war, made men ready to hear the voice
of Grotius (1583-1645), whose work marks the beginning of the
modern period.
HISTORICAL DEVELOPMENT 21
12. Modem Period (1648- )
The modern period of international law may be divided into
five epochs : (a) From the Peace of Westphalia, 1648, to the
Peace of Utrecht, 1713; (b) from the Peace of Utrecht, 1713,
to the Congress of Vienna, 1815; (c) from the Congress of
Vienna, 1815, to the call for the First Hague Peace Conference,
1898 ; {d) from the call for the First Hague Peace Conference,
1898, to 1914 ; (e) from 1914 to the present time.
(a) It became evident at the termination of the Thirty
Years' War in 1648 that the old doctrines of world-empire,
1S48-171S- whether of Pope or of Emperor, could no loliger
Deretopment be sustained. The provisions of the Peace of
pnncipiea. Westphalia, while not creating a code to govern
international relations, did give legal recognition to the existence
of many such conditions as Grotius contemplated in '' De Jure
Belli ac Pacis," in regard to the relations of states regardless
of area and power. The decree of James I, in 1604, establishing
a neutral zone by ^' a straight line drawn from one point to
another about the realm of England," in which neither of the
parties to the war between the United Provinces and Spain
should carry on hostilities, formed a precedent in maritime
jurisdiction, even though the decree was but imperfectly en-
forced. This early part of the modem period was especially
fruitful in treatises and discussions upon the nature of inter-
national law, and upon what it cmght to be, and also upon the
law of the sea, particularly Grotius's " Mare Liberum," 1609,
Selden's "Mare Clausum," 1635, and Bynkershoek's "De
Dominio Maris," 1702.^ During this period the public law was
diligently studied ; the right of legation became generally recog-
nized; French gradually took the place of Latin in inter-
national intercourse,^ with a corresponding modern spirit in
* The Marine Ordinance of Louis XIV, 1681, became the basis of sea law.
* With the decline of the influence of the ** Holy Roman Empire," the use
of Latin in diplomacy became less general.
22 INTERNATIONAL LAW
the practice, though the discussions were usually ponderous
and abstract ; the idea of the balance of power flourished and
formed a subject of frequent controversy ; the principle of inter-
vention upon political grounds was propounded and acknowl-
edged ; and the opinions of the great publicists, such as Grotius,
gained weight and were widely studied. The general principles
of neutral trade, including " free ships, free goods," were laid
down ; prize laws and provisions as to contraband were adopted ;
numerous treaties of commerce gave witness of the growth of
international intercourse; and both men and states became
somewhat more tolerant.
(6) The Treaty of Utrecht (1713) gave recognition to many
of the principles which had become fairly well accepted during
I7ia-i8i5- *^^ years since 1648. There were evidences of
Testing of the growing influences of the New World upon
principM. ^Y^^ policy bf the Old; the American fisheries
question appeared ; the international regulations in regard to
commerce were multiplied ; and the central subject of the pre-
amble was a provision on " the balance of power." ^ For many
years the question of succession to the various seats of royal
and princely power formed the chief subject of international
discussion. During the eighteenth century the steady growth
of England as a maritime power and the European complications
over trans -Atlantic possessions gave rise to new international
issues. The basis of modern territorial acquisition was found
in the Roman law of occupatio, and the Roman law of river
boundaries was almost exactly followed.^ From the Treaty of
Aix-la-Chapelle (1748), in which former treaties were generally
renewed, to 1815, the growth and observation of the principles
of international law was spasmodic. By the Peace of Paris and
by the Peace of Hubertsburg (1763), many questions of territo-
1 Abb6 Saint-Pierre, in three volumes, 1729, " Abr6g6 du P^ojet de Pais
perp^tuelle," outlines a plan for peace by fixed system of balance of power,
s "Institutes/' II. 1, 21. 22.
HISTORICAL DEVELOPMENT 23
rial jurisdiction were settled. England, then become the domi-
nant power in North America, with greatly extended power in
the East, impressed upon international practice adherence to
actual precedent rather than to theoretically correct principles.
At the same time in Central Europe the conditions were ripe
for that violation of international justice, the partition of
Poland in 1772, followed by the further partition in 1793 and
1795. The rights which the concert of nations was thought
to hold sacred were the very ones most ruthlessly violated by
the neighboring powers. The American Revolution of 1776
and the French Revolution of 1789 introduced new principles.
The " armed neutrality " of 1780,^ while maintaining the prin-
ciple, " free ships, free goods," made impossible the converse,
'' enemy's ships, enemy's goods," which had been held. Both
the American and French Revolutions made evident the neces-
sity of the development of the laws of neutrality hitherto greatly
confused and disregarded.* During the French Revolutioi) it
seemed that to Great Britain alone could the states of Europe
look for the practice of the principles of international law.
After the French Revolution it was necessary to define jvsi
irUerdeniion that Europe might not be again convulsed. It
became clear that the state was an entity and distinct from the
person of its king. No longer could the king of France or of
any European state say " L'6tat, c'est moi." Even though
personal selfishness of monarchs might pervade the Congress
of Vienna, the spirit of nationality could not long be restrained.
The period from 1713 to 1815 had tested the general principles
propounded during the seventeenth century, and it was found
necessary to expand their interpretation, while the growth of
conunerce and intercourse made necessary new laws of neu-
trality and new principles of comity, such as were in part laid
I Declaration of Russia. Feb. 28. 1780.
* The works of Moser (1701-1786) and his immediate foUowers attempt t-^
make practical the principles of international law.
24 INTERNATIONAL LAW
down in the early days of the nineteenth century, as seen in
the resistance to the right of search, the declaration against
African slave trade, establishment of freedom of river naviga-
tion, improved regulations in regard to trade in time of war,
neutralization of Switzerland, placing of a protectorate over
the Ionian Islands, and determination of precedence and dig-
nities of the various diplomatic agents and the states which they
represented. By the year 1815 the theory of the seventeenth
century had been severely tested by the practice of the
eighteenth century, and it remained for the nineteenth century
to profit by the two centuries of modem political experience.
(c) The Peace of Westphalia (1648), the Peace of Utrecht
(1713), and the Treaty of Vienna (1815) are the three celebrated
cases of combined action of modern European
Practical appu- powers. The " balance of power "' idea had
^^?^ gradually been supplemented by "the concert
of the powers " idea, which would not merely
maintain the relative dcUus quo of " the balance," but might
enter upon a positive policy of concerted action. The " Holy
Alliance " of 1815, to promote " Justice, Chrbtian Charity,
and Peace," ^ was first broken by its originators. There was a
strong feeling that the principles of international law should be
followed, however, and this, the " Declaration of the Five
Cabinets," November 15, 1818, distinctly avowed in " their
invariable resolution, never to depart, either among themselves,
or in their relations with other states, from the strictest ob-
servation of the principles of the Rights of Nations." * The
attempt to extend the principle of intervention in favor of
maintaining the various sovereigns on their thrones, and in
suppression of internal revolutionary disturbances by foreign
force was made in the " Circular of the Three Powers," Decem-
ber 8, 1820.' Under many forms intervention was one of the
great questions of the nineteenth century, and the growing
1 1 HertaLetv 317. > Ihid., 573. • /Md.. 658.
HISTORICAL DEVELOPMENT 26
proximity and the multiplication of relations of states during
that century added many complications.^ The Grecian War
of Independence (1821-1829) brought the new principle of
pacific blockade (1827), and at its conclusion the powers guaran-
teed the sovereignty of Greece. Such matters as right of search,
foreign enlistment, Monroe Doctrine, freedom of commerce and
navigation, expatriation, extradition, neutralized territory,
ship canals, consular rights, neutral rights and duties, arbi-
tration, reciprocity, mixed courts, international postage, weights
and measures, , trade-marks and copyright, rules of war, sub-
marine cables, and sphere of influence, which came to the front
during the nineteenth century, indicate in a measure the subject-
matter of international negotiation. Throughout the period
since 1815 tendency has been rather to r^ard what is the inter-
national practice.
{d) At the reception of the diplomats at the Foreign Office,
St. Petersburg, August 12 (24), 1898, Count Mouravieff handed
to each foreign representative a document setting
progress forth at some length the burdens imposed by war
towd inter- ^^j jjy ^g preparations for war and expressing the
hope that the time was come " to put an end to
incessant armaments.'' This document of Count Mouravieff
fiuther declares that, " Filled with this idea. His Majesty has
been pleased to order me to propose to all the Governments
whose representatives are accredited to the Imperial Court,
the meeting of a conference which would have to occupy itself
with this grave problem.
" This conference should be, by the help of God, a happy
presage for the century which is about to open. It would
converge in one powerful focus the efforts of all States which
are sincerely seeking to make the great idea of universal peace
triumph over the elements of trouble and discord.
'' It would, at the same time, confirm their agreement by
^ I Oppenheim, 221.
26 INTERNATIONAL LAW
the solemn establishment of the principles of justice and right,
upon which repose the security of States and the welfare of
peoples."
This proposition by the Czar of Russia for an international
peace conference marks the beginning of a new epoch for
international law and international relations; an epoch in
which the endeavor is to substitute the reign of reason for
that of force. It was fully recognized that agreement upon
the law which should hold among nations would be the first
great step toward peace.
The suggested program for the conference of the powers
referred to (1) the limitation of armaments; (2) prohibition
of new means of injuring an enemy; (3) prohibition of new
explosives and of throwing projectiles from balloons, etc.;
(4) prohibition of submarine boats and rams ; (5) extension of
the provisions of the Geneva Convention of 1864 to naval war-
fare ; (6) neutralization of vessels rescuing shipwrecked ; (7) re-
vision of Declaration of Brussels, 1874, as to laws of war on
land, and (8) matters of good offices, mediation and arbitration.
This Conference, representing twenty-six states, which is
-^ « * «^ now known as the First International Peace Con-
ine First Peace
Conference at ference at The Hague, assembled at The Hague
The Hague. ^^ j^^^ jg^ jggg^ ^^j j^^jj j^ sessions at the
House in the Woods. It concluded its labors on July 29, 1899.
This Conference formulated three conventions and three
declarations.
Conventions: (1) Pacific settlement of international dis-
putes, (2) laws and customs of war on land, (3) adaptation
to maritime warfare of the principles of the Geneva Conven-
tion of August 22, 1864.
Declarations: (1) To prohibit the laimching of projectiles
and explosives from balloons or by other similar new methods.
(2) To prohibit the use of projectiles, the only object of which
is the diffusion of asphyxiating or deleterious gases. (3) To
HISTORICAL DEVELOPMENT 27
prohibit the use of bullets which expand or flatten easily in the
human body, such as bullets with a hard envelope, of which the
envelope does not entirely cover the core, or is pierced with
incisions.
The Conference adopted a resolution favoring the restrict
tion of military charges.
The Conference expressed wishes (1) for the early revision of
the Geneva Convention of 1864, (2) for the consideration
of the rights and duties of neutrals by a subsequent confer-
ence, (3) for further study of the limitation of the effectiveness
of arms, (4) for the further consideration of the limitation of
armaments, (5) for reference of question of inviolability of
private property at sea to a subsequent conference, (6) for
similar reference of the question of bombardment of coast
towns and villages.
While the results of this First International Peace Confer-
ence were at first regarded as insignificant, their value was
» ^^^ soon evident. The United States led in sub-
KMmtB of mo
Knt Peace mitting causes to the Court of Arbitration, and
*^*"^" the worth of the plans of the Conference was
shown in the peaceful adjustment of the threatened difficul-
ties between Great Britain and Russia over the Dogger Bank
affair during the Russo-Japanese War in 1904.
The suggested Conference for the revision of the Geneva
Convention assembled at Geneva June 11, 1906, and completed
its labors of revision on July 10, 1906.
The value of such conferences as that called at The Hague
in 1899 was so well established that according to the preamble
of the Final Act, " The Second International Peace Conference,
proposed in the first instance by the President of the United
States of America, having been convoked, on the invitation of
His Majesty, the Emperor of All the Russias, by Her Majesty,
the Queen of the Netherlands, assembled on the 15th June, 1907,
at The Hague, in the Hall of the Knights, for the purpose of
28 INTERNATIONAL LAW
giving a fresh development to the humanitarian principles which
served as a basis for the work of the First Conference of 1899."
This Second International Peace Conference at The Hague,
representing forty-four states, concluded thirteen conven-
tions and one declaration.
Conventions: (1) Pacific settlement of international dis-
putes, (2) limitation of employment of force for recovery of con-
The Second tract debts, (3) opening of hostilities, (4) laws
Peace Confer- and customs of war on land, (5) rights and duties
ence at The ^ > ^ o
Hague and ita of neutral powers and persons in case of war
oonyentiona. ^^ land, (6) status of enemy merchant ships
at outbreak of hostilities, (7) conversion of merchant ships into
war ships, (8) laying of automatic submarine contact mines,
(9) bombardment by naval forces, (10) adaptation of prin-
ciples of Geneva Convention to naval war, (11) restriction
of right to capture in naval war, (12) international prize court,
(13) rights and duties of neutral powers in naval war.
Declaration: Prohibiting the discharge of projectiles and
explosives from balloons.
This Conference of 1907 also pronounced in favor of the
principle of compulsory arbitration, expressed opinion on sev-
eral other matters and recommended the assembling of a Third
International Peace Conference after a period corresponding
to that which elapsed between the First and Second Con-
ferences. This Conference did not meet in 1915 on account
of the outbreak of the World War.
In 1908 Great Britain invited a conference of naval powers
to determine upon the rules for war upon the sea in order that
_ the International Prize Court Convention might
The Interna- . .
tionai Naval be ratified by certain powers who were reluctant
i90(M?and^' to accept the Convention " so long as vagueness
Declaration of and uncertainty exist as to the principles which
the Court, in dealing with appeals brought before
it» would apply to questions of far-reaching importance affecting
HISTORICAL DEVELOPMENT 24
naval policy and practice." This International Naval Con-
ference met at London, December 4, 1908, and concluded the
Declaration of London concerning the Laws of Naval War,
February 26, 1909.
The period 1898-1914 was especially one of formulation of
law by conventional agreement. International conventions^
made clear the law in some instances, reconciled
of this peiiod differing practices, set forth principles to govern
to mtcniA- new conditions, and in general embodied the idea
tlooftl law.
that the relations among states should be based
upon equitable law.
(e) From August, 1914, international law, particularly
as relating to hostilities, was tested by the World War. The
1914: _ test showed the weakness and lack of adapt-
HowTetti. ability to modem conditions of some of these
conventions, while strengthening confidence in many of the
long-recognized underlying principles of international law.
The states of the world emerged from the war desirous of a
stable peace. The preamble of the Covenant of the League
of Nations which forms Part I of the Treaty of Peace of June 28,
1919, declares that the High Contracting Parties agree to the
Covenant " in order to promote international cooperation and
to achieve international peace and security by the acceptance of
obligations not to resort to war, by the prescription of open, just,
and honorable relations between nations, by the firm establish-
ment of the understandings of international law as the actual
rule of conduct among Governments, and by the maintenance
of justice and a scrupulous respect for all treaty obligations in
the dealings of organized peoples with one another."
The League of Nations organized and endeavored to carry
out these objects. To that end various measures were taken,
1 For texts we Scott, " Texts of the Peace Ck)nferenoes at The Hague. 18d9
and 1907 '* : Higgins, ** The Hague Peace Conferences " ; see also appendices
post pp. Ixi ei aeq.
30 INTERNATIONAL LAW
and among other instrumentalities a permanent court of inter-
national justice was established in 1922. Resort to conferences
of powers for the adjustment of international problems became
common. The Washington Conference on Limitation of Arma-
ment, which also deliberated upon questions of the Pacific and
the Far East in 1921-22, negotiated seven treaties and twelve
resolutions aiming to reduce competitive preparation for war and
to remove many actual and prospective causes of international dif-
ferences. Far more than hitherto the negotiations were carried
on under ''the revealing light of the public opinion of the
world " when there were no victors and no vanquished and
when " the very atmosphere shamed national selfishness into
retreat." Other conferences with view to settling existing
difficulties or providing against possible differences among
states followed.
13. Influence of the United States
The United States of America for many years after 1776
occupied a position to a considerable extent apart from European
influences. It developed, therefore, ideas in regard to inter-
national relations which showed the influence of general prin-
ciples as well as the influence of national policy.
(a) The regulations in regard to neutrality issued in 1793
set forth the principles which have subsequently become gen-
erally recognized. Of this contribution toward
of iwis to **" ^he development of international law Hall says :
regwd to " The policy of the United States in 1793 con-
ooutrslity •
stitutes an epoch in the development of the
usages of neutrality. There can be no doubt that it was in-
tended and believed to give effect to the obligations then
incumbent upon neutrals. But it represented by far the most
advanced existing opinions as to what those obligations were ;
and in some points it even went further than authoritative
international custom has up to the present time advanced.
HISTORICAL DEVELOPMENT 31
In the main, However, it is identical with the standard of
conduct which is now adopted by the conununity of na-
tions." ^
(6) The United States has also consistently advocated the
freedom of conunerce and navigation. Many claims for ex-
j^^^^^^ ^ elusive rights over rivers, gulfs, and other bodies
contmerce and of water were resisted by the United States from
"*'"** the time of the acquisition of statehood. The
United States early insisted upon the freedom of navigation
of the Scheldt. In the definitive treaty of peace with Great
Britain in 1783, Article 8, it was provided that " The navigation
of the River Mississippi from its source to the ocean, shall
forever remain free and open to the Subjects of Great Britain,
and the Citizens of the United States." The negotiations of
the United States for securing freedom of river navigation were
based upon the natural right, but for many years the arguments
of the representatives received slight consideration. The Sound
Dues, which Denmark had for centuries collected from vessels
passing between the North and the Baltic seas, were a heavy
burden on commerce. Henry Wheaton, subsequently to become
one of the foremost authorities in international law, while
United States Minister to Denmark from 1827 to 1835, reported
to the Department of State upon the subject of these dues.
The United States then contended that " Denmark cannot lay
daim to these duties upon any principle either of nature or of
the law of nations nor from any other reason than that of anti-
quated custom." While maintaining that Denmark had no
right to collect tolls because^ of her geographical position, the
United States did admit that a reasonable return might justly
be made '' for the improvement and safety of the navigation
of the Sound or Belts." The United States, by the treaty of
April 11, 1857, paid $393,011 in consideration of Denmark's
agreement to keep up lights, buoys, and pilot establishments.
&HaU, p. 032.
32 INTERNATIONAL LAW
The United States has also always questioned the right of any
state or states to forbid access to the Black Sea and has pro-
tested against the restrictions placed upon the navigation of
some of the South American rivers. The principle of freedom
of navigation for which the United States had so often contended
was fully recognized in the Kongo in the latter part of the nine-
teenth century.
(c) The United States has also uniformly striven for the
largest possible freedom of trade routes, as in the
policy in the maintenance of the policy of the " open door "
Ftr E«8t. jj^ ^^^ YsLT East, particularly since 1899.^
(d) It has protected its citizens in their legitimate rights
and against oppression and arbitrary measures, as against the
Barbary Powers in the early nineteenth century,
Protectioii of , .
legitimate rights and in 1904 when Perdicaris, an American citizen,
of citizens. being deprived of his freedom by the bandit
Raisuli, Secretary Hay informed Morocco that " this Govern-
ment wants Perdicaris alive or Raisuli dead." *
(e) The United States has contributed much toward the
establishing of the laws of war both upon the land and upon
^ ^1. ^ * the sea. The Instructions for the Government
Contributions to
estsbiishment of Armies of the United States in the Field, pre-
o ws o wsr. pj^j.^ Y)y Dr. Lieber in 1863, have served as the
basis for the modem rules for warfare on land. At the Hague
Conference of 1907 an earnest attempt was made to secure
the exemption from capture of private property at sea, in ac-
cord with the traditional attitude of the United States. The
Supreme Court in 1899 said : " It is, as we think, historically
accurate to say that this Government has always been, in its
views, among the most advanced of the governments of the
world in favor of mitigating, as to all non-combatants, the hard-
ships and horrors of war." *
1 U. S. For. Itel.. 18d9, p. 128. * Ihid,, 1904, p. 508.
* The Buena Ventura. 175 U. 8.. 384.
HISTORICAL DEVELOPMENT 33
(/) In the United States there have always been many advo-
cates of the peaceful methods of settlement of international
disputes. Such method was provided for the
M^^Mtda- settlement of differences among the states of the
meat of inter- United States by the Articles of Confederation in
yoteg. 1778. Commissions were frequently appointed
by the United States for settlement of difficulties
with foreign states. Specific provision was made in a treaty
with Tripoli in 1796, that in case of dispute arising under the
treaty, neither party should appeal to arms, '' nor shall war
be declared on any pretext whatever/* and by Article 15 of the
treaty of 1805, a year shall be given for the adjustment of the
difficulty, "during which time no act of hostility shall be
permitted by either party." These provisions resemble those
of the "Advancement of Peace Treaties " of the early twentieth
century which the United States negotiated with many states.
At strictly American conferences, and at The Hague in 1899
and in 1907, the United States representatives gave cordial
support to the extension of arbitration and judicial settlement
of international disputes.
(g) In the World War of 1914, the United States endeavored
to secure the recognition of established principles and pursued
a policy of forbearance toward the belligerents,
SSJ2"^ the declaration of war of April 6, 1917, stating
the World that the war had been " thrust upon the United
States." In the treaties concluding peace with
Austria, Hungary, and Germany, August, 1921, the United
States endeavored to avoid obligations other than it should
itself specifically elect.
14. Writers
Among the writers upon subjects connected with inter-
national law before the days of Grotius the most prominent are
Victoria (1480-1546), Ayala (1548-1584), Suarez (1548-1617),
34 INTERNATIONAL LAW
and Gentilis (1552-1608). While in many respects their con-
tributions to the science were valuable, the work of Grotius
stands out preeminent among all the early writers.
(a) Hugo Grotius (1583-1645), the scholar, jurist and
statesman, was born in Delft, April 10, 1583. Of good family,
Lif and k ^^ ^^ extremely precocious, acquiring prodigious
of Hugo Grotius learning in many branches. At fifteen he went
^ with a special embassy to France ; at twenty he
was historiographer to the United Provinces, and at twenty-
five advocate-general of the fisc of Holland and 2^aland. The
next year he married Mary van Riegesberg, a worthy helpmeet,
and at thirty he became pensionary of the city of Rotterdam
as well as one of a deputation to England to settle maritime
disputes. In 1619, however, on account of his active part in
religious controversies, he was sentenced to imprisonment for
life, and his property was confiscated. Two years later, through
the cleverness of his wife, he escaped to Paris, where he spent
days of adversity and study. In 1625 " De Jure Belli ac Pacis '*
was published ; it brought no profit, but immediate and lasting
fame. Disappointed in his hope to return to permanent resi-
dence in Holland, he was appointed Swedish ambassador at the
French Court in 1635. Declining further service in 1646, he
retired, honored in all lands. He died from the effects of hard-
ships encountered in the journey to his native land, at Rostock,
August 28, 1645.^
Grotius's " De Jure Belli ac Pacis," 1625, is an attempt to
bring into a systematic treatment those principles which have
since become known as international law. Rich in quota-
tions, it touches upon many other subjects, and its broad
philosophical basis gives it permanent value. Conditions in
Europe at the time when the work appeared gave it immediate
and powerful influence in determining the course of modern
political history. Of course, many of the principles expounded
1 Walker, *' Hist. Law of Nations/* pp. 283, 336.
HISTORICAL DEVELOPMENT 36
by Grotius are no longer applicable, and many new principles,
such as the doctrine of neutrality, have gained recognition.
Nevertheless, upon the foundation laid by Grotius, the modern
science has been largely built.
(6) ZoucH (1589-1660), a successor of Gentilb, as pro-
fessor of Roman Law at Oxford, while a follower of Grotius in
^w *«. matter and method, deserves mention for his dis-
itiet on inter- tinction between jus gentium and that law to
"* ^' which he gives the name ju9 inter gentes, in the
French translation called droit entre lea gens, later droit inter-
naiicmal, and in the English, law of nations, and since the
latter part of the eighteenth century when Bentham led the
way, international law.
PuFENDORF (1632-1694), in his voluminous works in gen-
eral follows Grotius.
Toward the end of the seventeenth century, a school oppos-
ing the earlier writers arose. This school, headed by Rachel
(1628-1691), assigned a stronger authority to the principles
of international law, and gave more attention to usage, whether
tacitly admitted or plainly expressed, and to compacts.
Bynkershoek (1673-1743), limiting his work to particular
subjects in international law, gave to the eighteenth century
several authoritative treatises which are justly regarded as
of the highest worth. He especially defined the laws of mari-
time commerce between neutrals and belligerents {De Dominio
Maris, 17Q2), gave an outline of ambassadorial rights and
privileges (De Foro LegcUorum, 1721), besides contributing to
a much clearer understanding of the general subject of inter-
national law.
Wolff (1679-1754), published in 1749 his "Jus Gentium."
This bases international law on a sort of state universal, civitas
maxima, made up of the states of the world in their collective
capacity as voluntarily recognizing a natural law.
Vattel (1714r-1767), an ardent admirer of Wolff, published
36 INTERNATIONAL LAW
in 1758 his '' Law of Nations/' which he based upon the work
of Wolff. This work of Vattel was clear and logical and gained
an immediate and wide influence, far surpassing that of his
master.
MosER (1701-1786), brings into the science the positive
method which Rachel had hinted at in his work a hundred years
before. He narrows his view to the principles underlying the
cases of his own day, and would build the science on recent prece-
dents. The method thus introduced has strongly influenced
succeeding writers.
G. F. DE Martens (1756-1801), combines in a measure the
method of Vattel with the positive method of Moser in his
" Pr&is du Droit des Gens Moderne de TEurope," 1789. This
treatise has been a recognized authority.
Many special and general works appeared in the later years
of the eighteenth century and early years of the nineteenth.
Wheaton (1785-1848), the foremost American writer on
international law, published in 1836 his " Elements of Inter-
national Law," which in many editions has long been recognized
as a standard throughout the world.
Many other works of highest merit appeared during the
latter half of the nineteenth and early twentieth century, such
as those of Bluntschli, Travers Twiss, Calvo, Wharton, Philli-
more, Pradier-Foderfi, F. de Martens, Bonfils, W. E. Hall,
Westlake, and Oppenheim. There are also many living writers
whose contributions are of greatest worth. Mention of the
leading authors and their works is made in the '' Bibliography."
OUTLINE OF CHAPTER IV
SOURCES OF INTERNATIONAL LAW
16. PRACTICE AND USAGE.
16. DECISIONS AND PRECEDENTS.
(a) Prize and admiralty courts dedsions.
(b) Dedsions of domestic courts.
(c) Decisions of courte of arbitration.
17. TREATIES AND STATE PAPERS.
(a) Laying down new rules or outlining operation of old rules.
(b) Enunciation of established rules.
(c) Agreement as to rules to be held mutually binding.
(d) Interstate compacts.
18. TEXT WRITERS.
19. DIPLOMATIC PAPERS.
38
CHAPTER IV
SOURCES OF INTERNATIONAL LAW
16. Practice and Usage
If for a time international intercourse follows certain methods,
these methods are regarded as binding in later intercourse,
and departure from this procedure is held a violation of inter-
national right. That collection of customs known as ''The
Law Merchant " b an example of a source of this class. Of
this it has been said : " Gradually, the usages of merchants
hardened into a cosmopolitan law, often at positive variance
with the principles of local law, but none the less acquiesced in
for mercantile transactions, and enforced by tribunals of com-
manding eminence and world-wide reputation, such as the courts
of the Hanseatic League and the Parloir aux Bourgeois at
Paris." 1
Sir W. Scott, in the case of the Santa CruZj 1798, said
** Courts of Admiralty have a law and a usage on which they
proceed, from habit and ancient practice." '
16. Decisions and Precedents
The domestic courts of those states within the family of
nations may by their decisions furnish precedents which be-
come the basis of international practice.
(a) The decisions of prize and admiralty courts form in them-
^ Jenkfl, " Law and Politics in the Middle Ages/' p. 30.
>The Santa Cruz, 1 C. Rob.. 49. 61.
39
40 INTERNATIONAL LAW
•
selves a large body of law. Jurisdiction in admiralty and
maritime causes in the United States rests in the District Courts,
with right of appeal in prize cases to the Supreme Court.* The
District Courts have original jurisdiction in civil causes of
Prize and ad- admiralty. The prize courts of other powers
miraity courta vary in jurisdiction, nature, and procedure. Brit-
ish and American courts rely more particularly
upon precedents, while the Continental courts follow more dis-
tinctly the general principles laid down in codes and text writers,
and place less reliance upon previous interpretation of these
principles as shown in court decisions.^ Whatever the method
of the prize coiu-t, its decision, if legally rendered, stands as
valid in all states.'
Proposals were made at the Second Hague Conference in
1907 for the establishment of an international prize court.
(b) The decisions of domestic courts upon such matters
Dedaionaof ^ extradition,^ diplomatic privileges, piracy,
domeatic courta. g^^^ ^^^j ^ become a source of international
law. In the United States the Supreme Court has original
jurisdiction " in all cases affecting ambassadors, other public
ministers, and consuls." ^
(c) The decisions of courts of arbitration and other mixed
courts are usually upon broad principles. Some of the prin-
of ciples involved may become established prece-
covrta of arbi- dents, yet the tendency to render an award,
tration. which by a compromise may be measurably
acceptable to both parties, may lessen the value of the decision
as a precedent. As arbitration has hitherto been voluntary,
there has generally been a consensus upon points which might
become recognized precedents, even though the decision ren-
1 Act of Congress, March 3, 1911. 2 U. S. Comp. Sts. § 1215.
* Lawrence, § 53. ' Bolton v. Gladstone, 5 East, 155, 160.
* United States v. Rauscher, 1886, 119 U. S. 407.
* United States Constitution, Art. Ill, § 2. For English view, see Walker,
p. 46, who quotes 3 Burr, 1804.
SOURCES OP INTERNATIONAL LAW 41
dered might not become a precedent. The principles upon
which the court of arbitration bases its decision, more often
than the decision itself, furnishes material valuable for inter-
national law. The resort to arbitration and international
courts for adjudication of disputes is an indication of the gen-
eral recognition of mutual confidence between states.
17. Treaties and State Papers
Treaties and state papers of whatever form^ indicate the
state of opinion, at a given time, in regard to the matters of
which they treat. Since they are binding upon the parties
to them, treaties may be regarded as evidence of what the
states, bound by their terms, accept as law. When the same
terms are generally accepted among nations, treaties become a
valuable evidence as to practice and are reganjed as proper
sources of international law, or principles may be so well estab-
lished by successive treaties as to need no further treaty specifi-
cation. Treaties and state papers, however, vary greatly in
value as sources of international law.
(a) Treaties and state papers may lay down new rules or
outline the operation of old rules. As instances of those laying
down new rules may be taken several of the
JS?!iiw^ Hague Conventions of 1907, the International
ovdiiiiiis opera- Radioteleeraphic Convention of November 3,
tkm of old mlas. o x-
1906, the Geneva Convention of 1864 ; of those
outlining and determining the operation of old rules, there are
many instances ; the most numerous of these are in the treaties
in regard to maritime affairs and consuls.
(6) Treaties and state papers may enimciate established
rules as understood by the parties to the treaty. The Decla-
ration of the Conference of London, January 17, 1871, to
which the major European states were parties, announces
> Dedantions, protocolB, oonventioiia, proclamationB, notes, etc
42 INTERNATIONAL LAW
that the signatory powers " recognize that it is an essential
principle of the Law of Nations that no Power can liberate
Bmuicifttton of ^^^ ^^^ ^^ engagements of a Treaty, nor
Mtebiiahed modify the stipulations thereof, unless with the
consent of the Contracting Powers by means
of an amicable agreement." ^
(c) Treaties and state papers may agree as to rules which
shall be held as binding upon the parties to the treaty or paper.
The Declaration of Paris, 1856,' agreed as to
torniMtobe certam pnnciples and rules of mantune mter-
heid motuAiij national law, which should be held as binding
Mnnlng. , ^
the signatory powers or those later agreeing to its
provisions. This Declaration may be held as generally binding.
The United States, by Proclamation of April 26, 1898, an-
nounced its adherence to the principles of the Declaration, and
during the same year Spain acquiesced in its principles. It was
not strictly observed in the World War,
(d) Most treaties and state papers, however, deal with
interatate matters of interstate politics, and are not in
oompftcti. nuy sense sources of international law. They
are in most cases little more than interstate compacts.
1& Text Writers
During the seventeenth and the first half of the eighteenth
century, the writings of the great publicists were regarded
as the highest source of authority upon matters now in the
domain of international law. These writings not only laid
down the principles which should govern cases similar to those
which had arisen, but from the broad basis given the law of
nations deduced the principles for such cases as might arise.
This latter method was especially common among the early
writers, such as Victoria and Suarez in the sixteenth century.
» III H«rtelet, 1904. * Appendix p. xzzi.
SOURCES OP INTERNATIONAL LAW 43
The phDosophical school, from Grotius to the middle of the
eighteenth century, continued to propound the principles
which should govern in supposed cases, should they ever actually
arise. Statesmen looked to these treatises as authoritative
sources. The prolific Moser, in the middle of the eighteenth
century, made the historical method more prominent by giving
less attention to the natural law and by founding his system
on usage and treaties. Bynkershoek (1673-1743) had antici-
pated him in this method in treatment of special topics, but
Moser extended the system and made it more general. Succeed-
ing writers mingled the two systems, inclining to the one or to
the other. In the early days of the modem period the writers
upon the law of nations outlined the course which states should
pursue in their relations to one another. In the later days of
the modem period, the writers upon the law of nations, while
sometimes discussing problems before they arise, in general
attempt to expound the rules and principles which have entered
already into interstate action. The works of the text writers,
from Grotius to the present, must be regarded as sources of
highest value.
The Supreme Court of the United States in case of the Paquete
Habana in 1900 referring to the determination of questions
involving international law, said : " For this purpose, where
there b no treaty, and no controlling executive or legislative
act or judicial decision, resort must be had to the customs and
usages of civilized nations; and, as evidence of these, to the
works of jurists and commentators, who by years of labor, re-
search, and experience, have made themselves peculiarly well
acquainted with the subjects of which they treat. Such works
are resorted to by judicial tribunals, not for the speculations
of their authors concerning what the law ought to be, but for
trustworthy evidence of what the law really is." *
1 The PaqueU Habana and the Lota, 175 U. &. 677.
44 INTERNATIONAL LAW
19. Diplomatic Papers
Diplomatic papers, as distinct from state papers to which
more than one state becomes a party, are simply papers issued
by a state in regard to its international intercourse. The papers
are sometimes named state papers or included among the papers
to which other states are parties, — in the United States, in
the series known as " Diplomatic Correspondence, 1861-1868,"
and *' Foreign Relations " since 1870 ; and in Great Britain
in the " British and Foreign State Papers."
These papers, showing the opinions of various states from
time to time upon certain subjects which may not come up
for formal state action, afford a valuable source of information
upon the attitude of states toward questions still formally un-
settled. The simple expression to state agents in the way of
instructions or information as to the position of the state on a
given matter may, if continued and long accepted, give to the
principle involved the force of international sanction. This
was almost the case in the so-called Monroe Doctrine.^ In these
papers may often be found an indication of the line which the
principles of international law will subsequently follow, and a
general consensus by several states in diplomatic instructions
may be considered strong evidence of what the law is on a given
point.
1 In signing the Hague Convention for the Pacific Settlement of Inter-
national Disputes, the representatives of the United States made the reservation
that, " Nothing contained in this convention shall be so construed as to require
the United States of America to depart from its traditional policy of not intruding
upon, interfering with, or entangling itself in the political questions of policy
or internal administration of any foreign state ; nor shall anything contained
in the said convention be construed to imply a relinquishment by the United
States of America of ita traditional attitude toward purely American questions.*'
PART TWO
PERSONS m INTERNATIONAL LAW
OUTLINE OP CHAPTER V
STATES
20. DBFINmON OF A STATE.
(a) Must be political unity.
(p) Must possess soTereicnty.
21. CONDITIONS OF STATE EXISTENCB
(a) Mond.
(b) Physical.
(c) Communal.
(d) External relationship.
82. RECOGNITION OF NEW STATES.
(a) De facto existence of a state.
(b) Varying circumstances of recognition.
(1) By division.
(2) By union.
(3) By admission of old states.
(4) By admission of former barbarous communities.
(5) Individual and collective recognition.
(6) Example of an act of dissolution.
(c) Acts constituting recognition.
((f) Premature recognition.
(e) Certain political conditions requisite for recognition.
(/) Recognition irrevocable.
(g) Consequences of recognition.
(1) For the recognizing state.
(2) For the recognized state.
(3) For the parent state.
(4) For other states.
46
CHAPTER V
STATES
20. Definition of a State
A STATE b a sovereign political unity. It is of the relations
of states that public international law mainly treats. From
the nature of its subject-matter it is a juridical, historical, and
philosophical science.^ These sovereign political unities may
vary greatly. The unity, however,
(a) Must be political, i,e., organized for public ends as
-_ ^. understood in the family of nations and not
political and organized for private ends as in the case of a
■overetgn. commercial company, a band of pirates, or a
religious organization.
(6) Must possess sovereignty, i.e., supreme political power
beyond and above which there is no political power. It is
not inconsistent with sovereignty, that a state should volun-
tarily take upon itself obligations to other states, even though
the obligations be assumed under stress of war or fear of evil.
21. Conditions of State Existence
From the nature of the state as a sovereign political unity
it must be self-sufficient, and certain conditions are therefore
generally recognized as necessary for its existence from the
standpoint of international law.^
^ Holtiendorff, " Introduction droit public," 44.
>HaU, p. 18; 1 Rivier. § 3. 9. 1.
47
48 INTERNATIONAL LAW
(a) A state must be to a degree moral. In order that a
state may be regarded as within the '' family of nations/' and
within the pale of international law, it must
ditions: morti, recognize the rights of other states and acqui-
physicai, esce in its obligations toward them. This is
considered a moral condition of state existence.
(6) A state must also possess those physiccU resources which
enable it to exists as territory, etc.
(c) A state must possess a body of men in such communal
relationship as to warrant the belief in the continued existence
of the unity. Each state may be its own judge as to the time
when this relationship is established in a given body of men,
and when the recognition of the new state is fitting.
That such conditions are recognized as prerequisites of state
existence from the point of view of international law is not due
to the essential nature of the state, but rather to the course of
development of international law ; as Hall says : " the degree
to which the doctrines of international law are based upon the
possession of land must in the main be attributed to the associa-
tion of rights of sovereignty or supreme control over human
beings with that of territorial property in the minds of jurists
at the period when the foundations of international law were
being laid." ^
(d) The external relationship of the state rather than the
internal nature is the subject of consideration in international
law. For local law, a community may enter
f uTnshi upon State existence long before this existence is
recognized by other nations, as in the case of
Switzerland before 1648. Until recognition by other states
of its existence becomes general, a new state cannot acquire
full status in international law; and this recognition is con-
ditioned by the policy of the recognizing states.
1 HaU, p. 19.
STATES 49
22. Recognition of New States
'{a) State existence de facto is not a question of international
law but depends upon the existence of a sovereign political
f-cto unity with the attributes which necessarily ap-
istence of a pertain to it. This de facto existence is not de-
****** pendent upon the will of any other state or states.*
The entrance of the state into the international statehood,
however, depends entirely upon the recognition by those states
already within this circle. Whatever advantages membership
in this circle may confer, and whatever duties it may impose,
do not fall upon the new state until its existence is generally
recognized by the states already within the international circle.
These advantages and duties, as between the recognizing and
recognized state, inunediately foUow recognition but do not
necessarily extend to other states than those actually parties
to the recognition. The basis of this family of nations or inter-
national circle which admits other states to membership is
historical, resting on the polity of the older European states.
These states, through the relations into which they were brought
by reason of proximity and intercourse, developed among them-
selves a system of action in their mutual dealings ; and inter-
national law in its beginning proposed to set forth what this sys-
•
^ The internal acts of & de facto state are valid, whatever the attitude of
tiie international circle. As an example, in 1777, during the Revolutionary
War, the British governor of Florida made a grant of land in what is now the
southern part of the United States. Fifty years later a descendant of the
grantee laid claim to the land, but the Supreme Court of the United States
declared : " It has never been admitted by the United States that they ac-
quired anything by way of cession from Great Britain by that treaty [of Peace,
1783]. It has been viewed only as a recognition of preexisting rights, and on
that principle the soil and the sovereignty, within their acknowledged limits,
were as much theirs at the Declaration of Independence as at this hour. By
reference to the treaty, it will be found that it amounts to a simple recognition
of the independence and limits of the United States, without any language
purporting a cession or relinquishment of right, on the part of Great Britain ; . . .
grants of soil made fiagrarUe hello by the party that fails, can only derive validity
from treaty stipulations." Harcourt v. Gaillard. 12 Wheat. 523, 527. See also
M'Uvaine v. Coxe's Lessee. 4 Cr. 209, 212.
50 INTERNATIONAL LAW
tern was and should be.^ This family of states could not permit
new accessions to its membership unless these new states were
properly constituted to assume the mutual relationships, and as
to the proper qualifications for admission in each case, the states
already within the family claim and exercise the right to judge.
(6) The circumstances of recognition vary.
(1) The most numerous instances are in consequence of
division, which involves the recognition of the existence of more
VarTinsdr- ^^^ ^^^ state within the limits which had for-
camstmnces of merly been under a single jurisdiction. This
recogni on. ^^^^^ y^ preceded by recognition of the belligerency
of a revolted community within the jurisdiction of an existing
state, or may be preceded by division of an existing state into
two or more states.' In the first case recognition is a ques-
tion of national policy ; in the second case recognition b usually
readily accorded.
(2) In modern times a new state has frequently been formed
by the union of two or more existing states.' The recognition
in such a case usually follows immediately.
(3) A state after existence for a period of years may be formally
admitted into the famUy of states. Japan, for centuries a
de facto state, was only recently fully admitted to international
statehood.* Turkey, so long the dread of Europe, was formally
received by the Treaty of Paris, 1856.
(4) New states may be formed in territory hitherto outside any
de facto state jurisdiction, or within regions hitherto considered
savage. The examples of this class are mainly African, as in the
creation of the Kongo Free State under the International Asso-
1 Suares, " De Legibus." 6.
« Wheat. D., 41 n.
* Greater Republic of Central America, June 20, 1895, from Republics of
Nicaragua, Salvador, and Honduras. Dissolved November 29, 1898.
* Japan has been generally recognised since 1894, and her foreign relations
were for several years in course of readjustment. This readjustment was
completed as regards the United States by the treaty of November 22, 1894,
which became fully operative July 17, 1899.
STATES 51
ciation of the Kongo.^ The United States recognized the Kongo
Free State by acknowledging its flag, April 22, 1884. Liberia,
originally established by the American Colonization Society in
1821 as a refuge for negroes from America, since 1847 has been
recognized as an independent republic.
(5) From another point of view recognition may be indir
vidual or collective. Recognition is individual when a state,
independently of any other, acknowledges the international
statehood of a new state. This was the method by which other
states recognized the United States. Collective recognition is
by the concerted action of several states at the same time.
This has taken place most often in the admission of minor states
to the Eiux)pean family of states, as in the cases of Greece by
the powers at the Conference of London, 1830 ; Belgium, 1831 ;
Montenegro, Servia, and Roumania, at the Congress of Berlin,
1878 ; Bulgaria by agreement of the interested Powers in 1908 ;
the Czecho-Slovak State and Poland at Versailles in 1919.
(6) As an example of an act of dissolution may be cited King
^^^^j^ Oscar's address to the Swedish Riksdag, October
•c^ of 18, 1905, following a Norwegian vote for dissolu-
tion:
Good gentlemen, and Swedish men: It is an important
moment when I now raise my voice in this throne room.
** The union formed in 1814 between the two peoples of the
Scandinavian peninsula, which during former centuries were
separate nations, is now dissolved and the Swedish Riksdag,
by its decision of the 16th instant, has confirmed my proposi-
tion in favor of its dissolution." '
(c) The act constituting recognition of a new state may
be formal, as by a declaration, proclamation, treaty, sending
and receiving ambassadors, salute of flag, etc., or informal,
> The Kongo Free State by Treaty of Cesmon and Annexation, November
88, 1907, wae annexed to Belgium under the title, " Belgian Kongo."
* U. 8« For. iCel. 19Q6. p. 803.
it
52 INTERNATIONAL LAW
by implication through the grant of an exequaJtur to a consul
from the new state, or other act which indicates an acknowledg-
ment of international rights and obligations.^ It
constitutiiig should be observed, however, that the appointment
recogni j^^, ^^ reception within, an existing state, of agents
to carry on necessary intercourse between the existing state
and the aspirant for recognition does not constitute recog-
nition. It may be essential to have relations with a cemmunity
the statehood of which is not established, because of conmiercial
and other matters pertaining to the rights of the citizens of
the existing state whose interests, or who in person, may be
within the jurisdiction of the unrecognized community.* The
definite act of recognition is, however, in accord with the de-
cision of the internal authority to which this function is by
state law ascribed. As foreign states usually take cognizance
of the acts of the executive department only, it is the common
custom to consider recognition as an executive function, or as a
function residing in the head of the state. In the United States,
the President is for foreign affairs the head of the state, and has
the authority to recognize new states in any manner other than
by those acts which by the Constitution require the advice
and consent of the Senate, as in the conclusion of treaties,
and appointment of ambassadors, other public ministers, and
consuls.' President Roosevelt in 1903, receiving the Minister
of Panama, said : '' It is . . . fitting that the United States
should ... be the first to stretch out the hand of fellow-
ship and to observe toward the newborn State the rules of
equal intercourse that regulate the relations of sovereignties
toward one another." ^ As President Jackson had in his mes-
sage in December, 1831, and in the official correspondence
with Buenos Aires denied that country's jurisdiction over the
Falkland Islands, Justice McLean said, in rendering his opinion
> 1 Moore, § 27. • « 1 Rivier, {§ 44, 125. » 1 Halleck, p. 90.
«U. S. For. Bel. 1903, p. 246. See on this subject. 1 Moore. % 27.
STATES 53
in Williams v. Suffolk Insurance Company : " And can there
be any doubt that when the executive branch of the govern-
ment which is charged with our foreign relations, shall, in its
correspondence with foreign nations, assume a fact in regard
to sovereignty of any island or country, it is conclusive on the
judicial department? And in this view it is not material to
inquire, nor is it the province of the court to determine, whether
the executive be right or wrong. It is enough to know that in
the exercise of his constitutional functions he has decided the
question." ^ " The President is the executive department." ^
(d) Recognition may be premature and the recognized
community may not be able to maintain its place in the inter-
national circle, or in case of a struggle with another
rm^^n. ^^^^^ ^^V ^ defeated. The recognizing state
must assume in such case whatever consequences
may come from its misjudgment, and the parent state may
justly question the right of the recognizing state in its action,
e.g. the recognition by France of the United States in 1778 could
justly be regarded by England as premature and as a hostile
act.
(e) The recognition of a new state is the recognition of the
existence of certain political conditions. This recognition
of the state carries with it the acknowledgment
cai coiuSitioiis of Sovereignty, independence, equality, etc. It
'•'™^* *" is an essential condition to just recognition that
the new aspirant possess these qualifications
absolutely or potentially to a reasonable extent.
(/) From its nature, recognition is irrevocable and absolute,
unless distinctly conditional. Even when conditional, if the
recognition is prior to the fulfillment of the condition by the
recognized state, the recognition cannot be withdrawn because
1 13 Pet. 415. See alao Jones v. United States, 137 U. S. 202 ; Foster v.
Neilson, 2 Pet. 253.
' State of Mississippi v. Johnson, President, 4 WalL 475, 500. For review
of the question, see 32 Amer. Law Rev. 390, W. L. Penfield.
54 INTERNATIONAL LAW
of non-fulfillment of the condition, but the recognizing state
may resort to any other means which would be admitted in
international law as justifiable against any other
£«v<^^ state failing to fulfill its obligations, e.g. suspen-
sion of diplomatic relations, retorsion, reprisals, or
even war.^ In the case of Belgium, the definition of its bound-
aries and establishing of permanent neutralization was an act
subsequent to the recognition of its international statehood, and
in case of violation of the treaty stipulations, Belgium would not
lose its position as a state, but would be liable to such measures
of reparation as the other parties to the treaty might employ.'
If recognition could be withdrawn, it would work injustice to
the recognized state, and to other states who, as third parties,
will not permit their rights to be subject to the will of the recog-
nizing state or states.
ig) The consequences of recognition immediately touch the
relations of (1) the recognizing state, (2) the
M^rel^S^on. recognized, (3) the parent state if the new state
is formed from an existing state, and (4) in a minor
degree other states.
(1) The recognizing state b bound to treat the new state
in all respects as entitled to the rights and as under duties
accepted in international law.
(2) The recognized state is, as related to the recognizing
state, entitled to the rights, and under the obligations prescribed
in international law. As it is a new person in international
law, it is entitled to full personal freedom in entering into re-
lations with other states.' So far, however, as the territory
within the new state was under local obligations, these obliga^
tions are transferred to the new state. The general obligations
« 1 Rivier. " Droit des gens." || 3, 11.
* Hall, note 1. p. 86.
* Official United States Bulletin. No. 441, p. 2. Independence of Caeoho-
Slovaks and Jugo-Slavs, Oct. 18, 1918.
STATES 55
resting on the parent state, by reason of treaties and respon-
sibilities of all kinds which have been assumed by the parent
state in the capacity of a legal unity, are not transferred, because
the identity of the parent state remains intact.^
(3) The parent state, in cases in which the new state is formed
by separation from one already existing, is, as regards the
recognizing state, on the same international footing as the
new state. Both states are entitled to equal privileges, and
under like obligations. The relations to other states are not
necessarily much changed.
(4) The relations of the states other than the recognizing,
recognized, and parent states are changed to the extent that
they must respect the de facto relations set forth in (1), (2),
and (3) above, i.e. while not recognizing the new state, they
must accept the fact that the recognition exists for the states
who are parties to it, and they are not entitled to pass judg-
ment as to the justice of the recognition.
1 HaU, p. 01.
OUTLINE OF CHAPTER VI
LEGAL PERSONS HAVING QUALIFIED STATUS
23. MEMBERS OF CONFEDERATIONS AND OTHER UNIONS.
(a) States as members of confederations.
(b) States as members of unions.
24. NEUTRALIZED STATES: Sovereign only in a qualified degree.
26. PROTECTORATES AND SUZERAINTIES: MANDATES.
(a) Protectorates usually possess all powers not specifically re-
signed.
(b) Suzerainties possess only the competence specifically granted.
(c) Mandates.
26. CORPORATIONS.
(a) Corporations organized for private purposes.
(6) Corporations exercising political powers.
27. INDIVIDUALS.
28. INSURGENTS.
(a) Definition.
(b) Effect of admission of insurgency.
(c) Practice of the United States.
29. BELLIGERENTS.
(a) Definition.
(b) Conditions prior to recognition.
(c) Grounds of recognition.
(d) Recognition of belligerency, an act of the executive authority.
(e) Consequences of recognition of belligerency.
(1) Recognition by a foreign state.
(2) Recognition by the parent state.
(3) General effect of recognition.
(/) Admission of insurgency or recognition of belligerency gives
certain war status.
80. COMMUNITIES NOT FULLY CIVILIZED.
56
CHAPTER VI
LEGAL PERSONS HAVING QUALIFIED STATUS
23. Members of Confederations and Other Unions
A STATE in the sense of public law is not necessarily a state in
the full sense of international law if there are any limitations
g^^ ^ upon its power to enter into relations with other
members of states. Such a state may be a member of a con-
federation and exercise certam powers giving
it a qualified international status. These loose unions may,
as in the German Confederation from 1815 to 1866, leave to
the local states a degree of autonomy in regulating international
affairs while granting to the central government certain specified
powers. This division of international competence is usually
a temporary compromise ending in new states ^ or in a close
union.
In the examples of personal and real unions and the like,
the nature of the state is a matter of public law and little con-
cerns international law. As related to international law, the
question is how far are such states restricted in their dealings
*- The Secretary of State of the United States, replying to the Japanese Min-
ister in 1905 on the dissolution of the United Kingdom of Sweden and Norway,
said : " This Government has been notified by the Government of Norway
that the functions of the diplomatic representatives of Sweden and Norway
have oeaaed, ipso facto, so far as Norway is concerned, and that representatives
of Norway will be appointed. It is understood that the Swedish Government
regards its diplomatic agents as the representatives of the sovereign, and that
with the termination of the King's sovereignty over Norway his ministers cease
to represent Norway; but that their representation of Sweden is unaffected
thereby and that no new credentials are needed. It is presumed that each
country holds the same position with regard to its consular representatives."
U. S. Foreign Relations, 1905, p. 868.
67
58 INTERNATIONAL LAW
with other states. Before the 20th century, a union, such as
that existing in the case of the ruler of the United Kingdom of
g Great Britain and Ireland and Empire of India,
members of was of importance to international law only in
""^°*' its united capacity, while for public law the na-
ture of the union was of much significance. The same may
be said of the union of Austria-Hungary from 1867 till 1918,
and of the union of Sweden-Norway from 1814 until 1905.
In recent years, parts of the British Empire have had autonomy
in certain international matters and have voted in their own
right in certain conferences. By Article I of the Agreement
of December 6, 1921, " Ireland shall have the same constitu-
tional status in the conmiunity of nations known as the British
Empire as the Dominion of Canada," etc.
24. Neutralized States
Neutralized states are sovereign only in a qualified degree.
While such states have a certain formal equality, their actual
competence is limited in regard to the exercise of sovereign
powers. This limitation as to neutrality may be externally
imposed or externally enforced, as in the case of Belgium, 1839-
1919, Switzerland from 1815, Luxemburg, 1842-1919, Kongo,
1885-1908, and, till 1900, Samoa. This neutralization may
take place for political or philanthropic reasons. The degree
of external sovereignty possessed by neutralized states varied.
The fact that these states were not fully sovereign in the field
of international law in no way affected their competence ex-
cept in respect to matters covered by the conditions of
neutralization. Such states were deprived of the right of
offensive warfare, and had not therefore that final recourse
possessed by fully sovereign states for enforcing their de-
mands. The tendency in recent years has been away from
the status of neutralization.
LEGAL PERSONS HAVING QUALIFIED STATUS 59
25. Protectorates, Suzerainties, Mandates
(a) States under protectors — protector(Uea — usually possess
all powers not specifically resigned. States fully sovereign may
demand (1) that states under protectors afford
^J|^J^*^J2^ reasonable protection to the subjects and to the
•n powers not property of subjects of fully sovereign states, and
Srf^T^ (2) that the protecting state use reasonable
measures to give effect to the protection which
it has assumed. Just how much responsibility the protecting
state has depends upon the degree of protection exercised and
assumed. The protectorate of Great Britain over the South
African Republic by the agreement of 1884, terminated in 1902
by war and absorption, was of a very moderate form. The right
to veto within a certain time any treaty made with a foreign
state, other than the Orange Free State and native princes,
constituted practically the only restriction on the independence
of the Republic. Great Britain declared a protectorate over
Egypt in 1914, but recognized Egypt as a state in 1922. In
many instances protectorates easily pass into colonies, as in
the case of Madagascar, which Great Britain recognized as under
French protection in 1890, which protection the queen of Madar
gascar accepted in October, 1895, and in August, 1896, Madar
gascar was declared a French colony.
In the Convention between the United States and the Re-
public of Panama, November 18, 1903, Article I, " The United
States guarantees and will maintain the independence of the
Republic of Panama.*'
A relationship partaking somewhat of the nature of a pro-
tectorate was entered into by Germany, France, Great Brit-
ain, Norway, and Russia in 1907, by which Norway " under-
takes not to cede any portion of her territory to any power,"
and the other states undertake " to respect the integrity of
Norway " and in case of demand from Norway to afford " their
60 INTERNATIONAL LAW
support, by such means as may be deemed the most appropriate,
with a view to safeguarding the integrity of Norway." *
(6) As distinct from a state under a protectorate which pos-
sesses all competence in international affairs which it has not
specifically resigned, a state under suzerainty possesses only
such competence as has been specifically conferred upon it
by the suzerain. The relations are usually much closer than
between protecting and protected states; and in many cases
only the suzerain has international status, while the vassal
is merely tributary, though having a certain degree of internal
independence which may be in some instances
^"21"^ almost complete. By the first article of the
the competence Treaty of Berlin, Bulgaria was made a tributary
speciflceUy « • • i« i i
gnnted. ^^^ autonomous prmcipality under the suze-
rainty of the Sultan of Turkey. Under Russian
suzerainty were such vassal states as Bokhara and Khiva.
Some of the states under the suzerainty of European states
had no status in international law, as in the case of Bokhara
and Khiva. Such anomalous cases as the co-suzerainty of the
republic of Andorra, the collective suzerainty of the Samoan
Islands till 1900, and the absolute suzerainty of the United
States over the " domestic dependent nations " of Indians
show variations in relations of dependent entities.
(c) Mandates established in accordance with Article 22 of
the League of Nations Covenant are colonies and territories
which as a consequence of the World War passed from the
sovereignty of certain states and became a " trust
of civilization." Over these tutelage was to be
exercised by certain states as mandatories on behalf of the
League. The mandatory is to make an annual report to the
League Council " in reference to the territory committed to its
charge." A commission is constituted " to receive and examine
the annual reports."
> 2 A. J. I. L. Doc., p. 267.
LEGAL PERSONS HAVING QUALIFIED STATUS 61
26. Corporations
From the point of view of international law, corporations
are generally of two kinds : corporations organized for private
purposes, and corporations organized for purposes involving
the exercise of delegated sovereign powers.
(a) Corporations organized for private purposes come within
the field of international law, when in time of
onuiMdldr v^ their property or other rights are impaired,
y^^ when maritime law, whether of peace or war,
may have been mf ringed, and when their rights
are involved in the domain of private international law.
(() Corporations organized for purposes involving the exer-
cise of political powers have from time to time, for several
- ^ centuries, been chartered and have often ac-
vOffporatioiM , ^
•wddng quired a quasi-mternational status. While re-
poiiticai powers, g^^j^ ^ ^jj^ performance of functions intrusted
to them by their charters, the home governments have often
sanctioned acts for which their charters gave no warrant.
The companies that early entered America, India, Africa, and
the later African companies, are of this kind. The develop-
ment of the doctrine of " the sphere of influence " gave an im-
portant position to the companies organized within those states
desirous to share in " the partition of Africa."
Among the most notable of the earlier companies was the
English East India Company, which received its first charter
SogiiifaBMC ii^ 1600. During more than two hundred and
lodJa Company, gf^y ygarg this company exercised practically
sovereign powers, until by the act of August 2, 1858, the govern-
ment heretofore exercised by the company was transferred to
the crown, and was henceforth to be exercised in its name.
In the late nineteenth century, African companies chartered
by the European states seeking African dominions had very
elastic charters in which the home governments generally re-
62 INTERNATIONAL LAW
served the right to regulate the exercise of authority as occa-
sion might demand. These companies advanced and confirmed
African the spheres of influence of the various states,
companies. governed under slight restrictions great terri-
tories, and treated with native states with full authority.
The British South Africa Company, chartered in 1889, was
granted liberal powers of administration and full capacity,
subject to the approval of the Secretary of State for the Col-
onies, to treat with the native states. The field of operations
of this company was extended in 1891, so that it soon in-
cluded over six hundred thousand square miles of territory.
The acts of these companies became the basis of subsequent
negotiations among the various European states, and the com-
panies had a very important influence in molding the character
of African development.
In recent years commercial companies have secured special
concessions for the construction of railways, opening of mines,
etc., in many regions. These companies have often received
Other the approval of their governments and have
companies. sometimes had government subsidies. The areas
in which these companies operated or in which they had con-
cessions were considered within the spheres of interest of their
states.
27. Individuals
Without entering into discussion of "the doctrine of the
separability of the individual from the state," it is safe to
affirm that individuals have a certain degree of competence
under exceptional circumstances, and may come imder the
cognizance of international law. By the well-established
dictum of international law a pirate may be captured by any
vessel, whatever its nationality. General admiralty and mari-
time procedure against a person admit the legal status of an
individual from the point of view of international law. The
LEGAL PERSONS HAVING QUALIFIED STATUS 63
extension of trade and commerce has made this necessary.
This is particularly true in time of war, when individuals wholly
without state authorization, or even in contravention of state
regulations, commit acts putting them within the jurisdiction
held to be covered by international law, as in the case of persons
brought before prize courts. The principles of private inter-
national law cover a wide range of cases directly touching
individuab.
' 28. Insurgents
(a) Insurgents are organized bodies of men who, for public
political purposes, are in a state of armed hostility to the es-
tablished government. There may be war in
the " material sense " which, because belligerency
has not been recognized, has not become war in the " legal
sense " ; ^ nevertheless those engaged may have legal status.
(6) The practice of tacitly admitting insurgent rights has
become common when the hostilities have assumed such pro-
Eflectofad^ portions as to jeopardize the sovereignty of
of the parent state over the rebelling conununity,
or seriously to interfere with customary foreign
intercourse.*
In general, it may be said that : '
(1) Insiu*gent rights cannot be claimed by those bodies
seeking other than political ends.^
1 *' The difltinctioii between recognition of belligerency and roogniti >n
of a condition of political revolt, between recognition of the existence of wjir in
a material aenae and war in a legal sense, is sharply illustrated by the case be-
fore us. For here the political department has not recognized the existence of a
fU facto belligerent power engaged in hostility with Spain, but has recognized
the existence of insurrectionary warfare prevailing before, at the time, and since
this forfeiture is alleged to have been incurred." The Three Friends, 166 U. S. 1.
< Wheat. D., note 15, p. 34.
' For fuU discussion see Wilson, " Insurgency " lectures, U. S. Naval War
College, 1900.
* Wilson, Insurgency and International Maritime Law, 1 A. J. I. L., p. 46.
XJnderhill v. Hernandes. 168 U. S. 250.
64 INTERNATIONAL LAW
(2) Insurgent acts are not piratical, as they imply the pur-
suit of " public as contrasted with private ends." *
(3) The admission of insurgent rights does not carry the
rights of a belligerent, nor imply official recognition of the
political status of the insurgent body. *
(4) The admission of insurgent rights does not change the
responsibility of the parent state for acts committed within
its jurisdiction.'
(5) When insurgents act in a hostile manner toward foreign
states, they may be turned over to the parent state, or may
be punished by the foreign state.*
(6) A foreign state must in general refrain from interference
in the hostilities between parent state and insurgents, i.e, can-
not extend hospitality of its ports to insurgents, extradite in-
surgents, etc., though it may intern them.^
(7) When insurgency exists, the armed forces of the insur-
gents must observe and are entitled to the advantages of the
laws of war in their relations to the parent state.*
(c) During the struggles between the parties in the United
States of Colombia in 1885, the President of Colombia decreed :
(1) That certain ports held by the insurgents were closed to
foreign conunerce under penalties prescribed by Colombian
laws, and (2) that insurgent vessels flying the Colombian flag
were beyond the pale of international law.^
The United States refused to recognize the validity of the
1 2 MDore, |S 329-335 ; United States v. AnArose Light, 25 Fed. Rep. 408.
Snow cases, 203. Monietuma. The liata, 56 Fed. Rep. 505. See the Virginuis,
U. S. For. Rel. 1875. vol. II. p. 1178.
'President Cleveland's Message Dec. 8, 1885. 8 Richardson Messages
and Papers of the Presidents, pp. 324, 326. U. S. For. Rel. 1885, pp. 254, 273.
* Pari. Papers, 1887, 1 Peru, 18. China in 1901 agreed to pay various states
more than $335,000,000 as indemnity for the injuries suffered during the Boxer
uprising of the previous year (U. S. For. Rel. 1901, Appendix). See also
Spanish Treaty Claims Commission, Opinion No. 8 (1903).
* 2 Moore, | 331, Huaacar. • Ex Parte Toscano, 208 Fed. Rep. 938.
* Lawrence, | 142. ^ 1885. For. Rel. U. S. 252, 264.
LEGAL PERSONS HAVING QUALIFIED STATUS 65
decree.* President Cleveland's message of December 8, 1885,
stated: "The denial by this (U. S.) Government of the
^ncAcm Colmnbian proposition did not, however, imply
of the the admission of a belligerent status on the part
United Statas ^f ^j^^ insurgents."
During the rebellions in Chile in 1891 and in Brazil in 1894,
the insurgents, while not recognized as belligerents by for-
eign powers, were nevertheless given freedom of action by these
powers.
The President's messages of December 2, 1895, December 7,
1896, and December 6, 1897, distinctly mention a status of
insurgency as existing in Cuba.
In 1913 and later insurgent troops from Mexico crossing
into the United States were interned in accordance with the
Hague Convention.
By a joint resolution of the Congress of the United States
approved March 14, 1912, it was provided :
" That whenever the President shall find that in any Ameri-
can country conditions of domestic violence exist which are pro-
moted by the use of arms or munitions of war procured from
the United States, and shall make proclamation thereof, it
shaU be unlawful to export except under such limitations and
exceptions as the President shall prescribe any arms or munitions
of war from any place in the United States to such country
until otherwise ordered by the President or by Congress."
Congress on January 31, 1922, passed a joint resolution
similar to that of March 14, 1912, but appljang to states where
the United States exercises extraterritorial jurisdiction, anc^
under this resolution President Harding on March 6, 1922,
owing to disturbed conditions prevailing there, prohibited
export of arms to China.
^ Ihid., pp. 254 et iteq,; 2 Moore, | 332; see also Pari. Deb. H. C, June 27,
1861 : Biunteclili, § 512 ; HaU. p. 39.
66 INTERNATIONAL LAW
29. Belligerents
(a) A community attempting by armed hostility to free
itself from the jurisdiction of the parent state may, under
certain conditions, be recognized as a belligerent.
(6) The general conditions prior to recognition are: (1)
That the end which the community in revolt seeks shall be
Conditknis political, i,e. a mere mob or a party of marauders
prior to could have no belligerent rights ; (2) the hostili-
"^ ties must be of the character of war and must
be carried on in accord with the laws of war; (3) the pro-
portions of the revolt must be such as to render the issue un-
certain and to make its continuance for a considerable time
possible * (4) the hostilities and general government of the
revolting conmiunity must be in the hands of a responsible
organization.
As each state, including the parent state, must judge as
to the fact whether the conditions warranting recognition of
beUigerency exist, there may be great divergency of opinion in
cases of recognition,^ but the question of belligerency is a ques-
tion of fact and never a question of theory.
(c) A conmiunity carrying on, in accord with the rules of
war, an armed revolt of such proportions as to make the issue
Gnrandsof uncertain and acting under a responsible organ-
recognitioii. ization may not, without offense to the parent
state be recognized as a belligerent except upon good grounds.
The generally admitted ground is, that the interests of the rec-
ognizing state be so far affected by the hostilities '' as to make
recognition a reasonable measure of self-protection." * " The
reason which requires and can alone justify this step (recognition
of belligerency) by the government of another country, is, that
its own rights and interests are so far affected as to require a
^ See numeroua references in 51 Br. and Fr. St. Papers : also Hall, p. 33.
s Hall, p. 32.
LEGAL PERSONS HAVING QUALIFIED STATUS 67
definition of its own relations to the parties. . . . A recognition
by a foreign state of full belligerent rights, if not justified by
necessity, is a gratuitous demonstration of moral support to the
rebellion, and of censure upon the parent government." ^
({2) Recognition of belligerency is naturally an act of the
executive authority.^
The following is the proclamation of Queen Victoria of
May 11, 1863: —
" Whereas we are happily at peace with all sovereign powers
and states:
"And whereas hostilities have unhappily commenced be-
Recocnition of ^^^^ ^® Government of the United States of
beOtserency an America and certain states styling themselves
•etot^eemea' the Confederate States %( America :
•ntiuwity. "And whereas we, being at peace with the
Government of the United States, have declared our royal
determination to maintain a strict and impartial neutrality
in the contest between the said contending parties :
" We, therefore, have thought fit, by [and with] the advice
of our privy council, to issue this our royal proclamation :
"And we do hereby strictly charge and command all our
loving subjects to observe a strict neutrality in and during
the aforesaid hostilities, and to abstain from violating or con-
travening either the laws and statutes of the realm in this
behalf or the law of nations in relations thereto, as they will
answer to the contrary at their peril."
(e) Certain consequences follow the recognition of bellig-
erency.
(1) If recognition is by a foreign state
From the date of recognition, the parent state is released
from responsibility to the recognizing state for the acts of the
belligerents.
1 Wheat. D., note 15, p. 34. > 1 Moore, §§ 59-70.
68 INTERNATIONAL LAW
So far as the recognizing state is concemeQ, the parent
state and the belligerent community would have the same war
Coiueauaiices ^tatus, i.e. in the ports of the recognizing state,
of recognition the vessels of both parties would have the same
of boUigoroncj. • •! ^i i ^ i # ^.i • •
pnvileges, the merchant vessels of the recognizing
state must submit to the right of search as justly belonging to
both parties ; in fine, so far as the prosecution of hostilities is
concerned, the recognizing state must accord the belligerent
community all the privileges of a full state.
The recognizing state may hold the belligerent commu-
nity, if it subsequently becomes a state, accountable for its
acts during the period after the recognition of its belligerency.
If, however, the parent state reduces the revolting community
to submission, the recognizing state can hold no one responsible
for the acts committed by the recognized community after the
date of recognition.
This recognition does not necessarily affect other than the
three parties, the recognizing state, the belligerent community,
and the parent state.
(2) // recognition is by the parent state
From the date of recognition, the parent state is re-
leased from responsibility to all states for the acts of the bel-
ligerents.
So far as the prosecution of hostilities is concerned, the
community, recognized as belligerent by the parent state, is
entitled to full war status.
From the date of recognition by the parent state, the
belligerent community only is responsible for acts within its
jurisdiction, and if subdued by the parent state, no one can
be held responsible, i.e. contracts made with a belligerent, or
responsibilities assumed by a belligerent, do not fall upon the
victorious parent state.
LEGAL PERSONS HAVING QUALIFIED STATUS 69
Recognition of belligerency by the parent state gives the
revolting community a war status as regards all states.
(3) General effect of recognition
In a broad way, recognition by the parent state makes
general those conditions which may exist only for the parties
Gencfal •ff«ct directly concerned when recognition is by a single
oi ncosnition. f Qj^jg^ state. In cases where several states rec-
ognize the belligerency of a hostile community, other states that
have not recognized its belligerency may, without offense to the
parent state, treat the hostile community as a lawful belligerent,
which treatment would be constructive recognition. The general
effect of recognition is to extend to the belligerent all the rights
and obligations as to war that a state may possess, and to free
the parent state from certain obligations while giving some
new rights. The parent state may use the proper means for
the enforcement of neutrality, may demand reparation for any
breach of the same, may maintain blockade, prize courts, and
take other measures allowable in war.
(/) Insurgent status is usually tacitly admitted for a period
prior to the recognition of belligerency, and the vessels of the
^^^^ insurgents are not regarded as pirates either in
recognitiofi of practice or theory. They have not the animus
wftotiw. furandi. The admission of insurgent status or
the recognition of belligerency does not imply anything as to
the political status of the community. In the first place there
is conceded a qualified war status, and in the second full war
status.
30. Communities Not Fully Civilized
While there i& no agreement as to what constitutes civiliza-
tion, still international law is considered as fully binding only
upon states claiming a high degree of enlightenment. Com-
munitieSf whether or not politically organized and not within
70 INTERNATIONAL LAW
the circle of states recognized by interaational law, because
they are not regarded as sufficiently civilized, are not treated
as without rights. It is held that these communities should be
treated as civilized states would be treated, so far as the time
and other circumstances permit. Unduly severe measures,
whether in war or peace, should not be used by civilized states
in dealing with those not civilized. It may be necessary that
barbarians should be used as auxiliary forces in contests with
barbarians, but it is now held that such forces should be officered
and controUed by the civilized state. Extreme measures, in
the way of devastation and destruction, have been used with the
idea of impressing upon the minds of barbarians respect for the
power of a state, but it is now questioned how far this is fitting
for states claiming civilization. Many states not admitted to
the circle of nations have now acquired such a status as entitles
them to the general privileges of international law to the extent
to which their action has not violated its provisions, and it is
generally so accorded.
PART THREE
INTERNATIONAL LAW OF PEACE
OUTLINE OF CHAPTER VII
GENERAL RIGHTS AND OBLIGATIONS OF STATES
31. EXISTENCE: The single comprehensive right of a state.
82. INDEPENDENCE AND INTERDEPENDENCE : ReUtionship in
family of nations.
88. EQUALITY: The possession of equal rights in political affairs.
84. JURISDICTION: The right to exercise state authority.
86. PROPERTY: The right of domain in the territory.
86. INTERCOURSE: A right necessary for the transaction of state
business.
72
CHAPTER Vn
GENERAL RIGHTS Aim OBLIGAHONS OF STATES
81. Existence
The most comprehensive right of a state is the right to exist
as a sovereign political unity. From this comprehensive right
flow the general rights of independence, equality, jurisdiction,
'property, and intercourse and the obligations which the exercise
of these rights imply. There are many classifications of the
general rights of states. During the eighteenth century a
classification into perfect and imperfect rights was common. A
classification based on the essential nature of the state as a
sovereign poUtical unity, having (1) a right to existence and
(2) from the point of view of international law, having relations
to other states, has been widely followed. The rights based on
the comprehensive right to existence were variously named as
essential, fundamental, primitive, innate, absolute, permanent,
etc., while the rights derived from the practice of states in their
mutual relations were called accidental, derived, secondary,
acquired, relative, contingent, etc. The view now most gen-
erally recognized is that from the single comprehensive right of
states to exist, all other rights flow, and all other rights are
therefore related, if not directly, at least by virtue of their
common source.
32. Independence and Interdependence
Independence from the point of view of international law
is freedom from external political control though not necessa-
rily isolation or non-relationship with other states. While all
73
74 INTERNATIONAL LAW
states possessing freedom from external political control may
not be admitted to the family of states, yet in order that a
state may be admitted, it is regarded as essential that it be
independent. The recognition of a state carries with it the
recognition of independence. However, from the fact that
there are states in the world having equal rights to independ-
ence, it follows that the field of action of each state is limited by
the necessity of respect for the right of independence belonging
to other states. The admission of a state to the family of
nations in itself creates a relation of interdependence.
The recognition of a state presupposes autonomy as an essen-
tial for the existence of a sovereign poUtical imity, and auton-
omy implies the right to determine and pursue such lines of
action as may be in accord with its policy and in accord with
international law.
33.
All states, the existence of which has been recognized by
the family of states, are regarded as possessed of equal rights
so far as legal competence is concerned.^
This does not imply an equality of territorial area, popu-
lation, wealth, rank, votes, and influence, etc., or that a given
state may not voluntarily limit the exercise of its powers.
34. Jurisdiction
The right of jurisdiction is the right to exercise state authority.
The right of jurisdiction is in general coextensive with the
dominion of the state. It may be " laid down as a general
proposition that all persons and property within the territorial
jurisdiction of a sovereign are amenable to the jurisdiction of
himself or his courts : and that the exceptions to this rule are
such only as by common usage and public policy have been
allowed, in order to preserve the peace and harmony of nations,
1 •• The Equality of States in International Law," Dioldnaon.
GENERAL RIGHTS AND OBLIGATIONS OF STATES 75
and to regulate their intercourse in a manner best suited to
their dignity and rights/' ^
36. Property
In international law, as against other states, a given state
has the right of property or domain in the territory and fix-
tures within its limits. This right of property is not the right
in the old feudal sense, for in the public law of the state the
title of ownership may vest in the state only in a limited sense
as over territory to which none of its subjects have title, and
over such other forms it has ownership in corporate capacity,
as public buildings, forts, arsenals, vessels, lighthouses, libraries,
museums, etc. The right of eminent domain as a domestic
rig^t may also vest in the state. While from the point of view
of international law, a state, as against other states, has the
right of property over all territorial and non-territorial posses-
sions within its limits, yet the effect of this right is somewhat
modified by the fact of public or private ownership, particularly
as regards the laws of war, neutrality, and intercourse.
36. Intercourse
In early periods of history, intercourse among states was
very limited and sometimes even prohibited. At the present
time the necessities of state existence presuppose, in inter-
national law, the recognition of the right of intercourse in
order that state business may be transacted. The principles
upon which this intercourse is carried on are well established,
and form the basis of diplomatic practice.
> Story, SanHuima Tnnidad, 7 Wheat. 364.
OUTLINE OF CHAPTER VIII
EXISTENCE
87. APPLICATION OF THE RIGHT.
(a) Right to take measures necessary for self-defense .
(b) Responsibility for acts.
(c) Right to administer internal affairs.
S8. EXTENSION OF THE RIGHT TO SUBJECTS OF THE STATE.
76
CHAPTER VIII
EXISTENCE
37. Application of the Right
The right of existence in its exercise may lead to certain acts
for which the general principles of international law do not
provide rules.*
(a) In face of actual dangers immediately threatening its
existence, a state may take such measures as are necessary
for self-preservation, even though not sanctioned
by international law. Such measures, however,
*®' must be from " a necessity of self-defense, in-
stant, overwhelming, and leaving no choice of
means and no moment for deliberation," and further " must
be limited by that necessity and kept clearly within it." * The
wide discussion of the case of the Virginius flying an American
flag, taken October 31, 1873, on the high seas by a Spanish vessel
of war on the ground of furnishing aid to Cuban insurgents in-
volved the principle of the limits of the right of self-defense.'
In this case it was maintained that no " imminent necessity
of self-defense could be alleged " justifying the execution after
summary trial of persons on board.
(Jb) The plea that action contrary to international law has
been to preserve the existence of a state will not free the state
Retponsibffity SO acting from responsibility for its acts, and
^■***- the acts may be regarded as cause for war by
the state which has suffered. Spain paid $80,000 as in-
1 HaU, p. 278.
< Caroline, 1 Whart § 60 c : 2 ibid,, § 224.
*2 Moore, pp. 895. 967. 980; U. S. For. Rel. 1875. vol. II. p. 1178.
77
78 INTERNATIONAL LAW
demnity for the execution of six American citizens on board
the Virginius.
(c) As the domestic acts of a state are not within the province
of international law, a state has the right to administer its
internal affairs in such manner as it may determine fit to secure
and further its existence. It may adopt any form of govern-
Right to ad- nient; may plan for its growth by developing
minister in- its resources, by encouraging immigration; may
strengthen defenses and forces; may regulate
trade, commerce, and travel. While acts of this character
may work injury to other states, they are not in general just
grounds for war, but may properly be met by like acts on the
part of other states.
38. Extension of the Right to Subjects of the State
As the subjects of a state are necessary for its existence,
the right of self-preservation had been held to justify certain
acts of states to secure to their subjects in their relations with
foreign states such rights as the foreign states would accord
to their own subjects under similar circmnstances.* That a
local tribunal within a purely domestic division of a state cannot
secure to foreigners rights to which they are entitled, in no way
frees that state, whose sovereignty extends over such domestic
division, from responsibility for violation of the foreigner's
right. International law recognizes only the personality of the
sovereign political unity, and cannot recognize the administra-
tive and other subdivisions. Italy assmned a correct position
in holding the United States government responsible for the
murder of Italian subjects while in custody of officers of the
State of Louisiana in 1891.^ Hall says: "States possess a
right of protecting their subjects abroad which is correlative
^ Borchard, " Diplomatic Protection/' p. 349.
s U. S. For. Rel. 1891, pp. 628-658: '* New Orleans o. Abbagnato." 62
Fed. Rep. 240 ; I BuUer. '* Treaty-making Power/* 149-166 ; I Hyde, 516.
EXISTENCE 79
to their responsibility in respect of injuries inflicted upon for-
eigners within their dominions." ^
Formerly it was maintained that a state should protect its
nationals against breach of money agreement by a foreign state,
but in recent years such controversies have more and more been
settled through courts either directly by the parties or by agree-
ments indirectly reached through the states.'
iHaU,p. 287.
■ See Hague Court Award, F^nch Claima against Peru, October 11, 1921.
OUTLINE OF CHAPTER IX
INDEPENDENCE AND INTERDEPENDENCB
89. MANNER OF BXBRCISB OF THE RIGHT.
40. EUROPEAN BALANCE OF POWER.
41. MONROE DOCTRINE AND AMERICAN POLICIES.
(a) The Monroe Doctrine.
(1) Reservation made by the United States in regard to the
Monroe Doctrine.
(8) A policy of the United States, not a principle of inter-
national law.
(3) Extent to which it has been recognized.
(4) Proposed extension.
(h) Other American policies.
(1) Eariy congresses of South American states.
(8) Pan-American Conferences, their aims and results.
(3) Certain principles observed only in the western
sjdiere.
48. NON-INTERVENTION.
48. PRACTICE IN REGARD TO INTERVENTION.
(a) Intervention for self-preservation.
(b) Intervention to prevent illegal acts.
(c) Intervention by general sanction.
(4) Other grounds of intervention.
(1) To carry out treaty stipulations.
(8) To preserve the balance of power.
(3) On the grounds of humanity.
(4) To act as mediator in time of civil war.
(6) On the ground of financial transactions.
(«) Intervention justifiable only on ground of self-preservatiofk
80
CHAPTER IX
INDEPENDENCE AND INTERDEPENDENCE
39. Maimer of Exercise of the Sight
While according to early theory there could be no limitation
or restriction of independence, because it was a recognized prin-
ciple that independence must be absolute and inalienable, yet in
reality interdependence rather than independence is becoming
the rule among states. In fact, every state, in order that it
may live at peace in the family of nations, voluntarily accepts
either formally by treaty or tacitly by practice, many conditions
which restrain it in the exercise of its powers. The independence
of the state is not thereby violated, since the restraint is exer-
cised by the state itself, and is not an act of external political
control. The number of these restraints which states volun-
tarily assmne is continually increasing, owing to the closer
relations of humanity. The provisions of the Covenant of
the League of Nations, 1919, and the action of the League
Assembly show increasing international cooperation.
The exercise of the right of independence involves the privi-
lege of making treaties, alliances, contracts, and municipal
laws, so far as these do not violate international law or the right
of independence as possessed by other states. A state may
go to war to maintain its independence.
40. European Balance of Power
Undoubtedly the idea of establishing a relationship of inter-
dependence among " neighboring states more or less connected
with one another, by virtue of which no one among them can
mjure the independence or essential rights of another without
81
\
82 INTERNATIONAL LAW
meeting with effectual resistance on some side and consequently
exposing itself to danger " ^ is not a modem idea. Ancient
states united to prevent the growth of some neighboring power
to such magnitude as would threaten their independence.*
From the beginning of the modern period of international law,
Peace of Westphalia (1648), the idea of maintaining an equi-
librium among the powers of Europe has had great influence
and until the latter part of the nineteenth century was regarded
as one of the fundamental principles of European international
practice. Many treaties aim to preserve this balance among the
European powers, and the words " balance " and " equilibrium "
often appear.* The Treaty of Utrecht in its provision between
Spain and Great Britain, July 13, 1713, gives as its object ad
firmandam stobiliendamque pacem ac tranquiUiUitem chrUtiani
orbis jiisto potentiae equilibro. The idea that independence
was to be preserved by some balance of power reappears
in successive treaties. This plea of the balance of power
has led to most diverse action. Unjust rulers have made
it the cloak for action entirely outside the sanction of inter-
national law. Many times it has " served as the pretext for a
quarrel, and repeatedly made hostilities general which would
otherwise have been shut up within a comparatively small
area." * The feeling that the balance of power was a necessary
policy for the preservation of European states, led to the idea
that states should be constrained to certain lines of action, which
would prevent, in many cases, normal growth. Frequently
the independence of a state was violated to anticipate an action
which might disturb the European equilibrium. The partitions
of Poland in the eighteenth century show a violation of the
principles of international law for the sake of giving equal
compensation to the parties to it.
^ Von Gentz, " Fragments upon the Balance of Power in Europe," 1806.
« Hume. '• EsBays." VII.
« Nys. •* Origines/' pp. 165 fif.
* Bernard. " Lectures on Diplomacy/' 08.
INDEPENDENCE AND INTERDEPENDENCE 83
The doctrine of the balance of power is not a principle of
international law, but merely a maxim of European political
practice pretending to state the means of maintaining the
independence of European states.^
41. Monroe Doctrine and American Policies
(a) Another maxim of political action is that which has
become known as the "Monroe Doctrine."* While enun-
The Monroe ciatcd by a single state, it had in view the main-
'^®**'*"- tenance of the independence of the states of the
American continent. For many years after the Revolu-
tionary War the opinion prevailed that Europe viewed with
disfavor the growth of the American republic. The Holy
Alliance, formed on the downfall of Napoleon, was followed
by several congresses of European powers, at one of which, held
at Verona in 1822, the subject of helping Spain recover her
revolting colonies in America was discussed. This led to the
declaration of President Monroe in his message of December 2,
1823, that there should be (1) no more European colonies on
these continents, (2) no extension of the European political sys-
tem to any portion of this hemisphere, (3) no European inter-
position in the affairs of the Spanish-American republics. This
doctrine has been repeatedly affirmed by the United States, and
in some instances very liberally interpreted. It in no way em-
bodies a principle of international law, though the European
and other states may regard it as expressing the attitude of the
United States upon the points covered, and if desirous of avoid-
ing friction, govern themselves accordingly.
(1) The United States, in signing the Hague Convention for
the Pacific Settlement of International Disputes in 1899, made
the following reservation : '' Nothing contained in this con-
> Tucker, *' Monroe Doctrine." 4.
' Hart, '* Monroe Doctrine " ; Kraiu, " Die Monroedoktrin." For document-
ary material, see 6 Moore, §§ 927-969.
84 INTERNATIONAL LAW
vention shall be so construed as to require the United States
of America to depart from its traditional policy of not intruding
upon, interfering with, or entangling itself in the political ques-
tion of any foreign state; nor shall anything
RoMrration contained in the said convention be construed
i^ted states to imply a relinquishment by the United States
^regard to ^f America of its traditional attitude towards
the Monroe
Doctrine. purely American questions." In ratifying on
April 2, 1908, this same convention as revised at
the Second Hague Conference in 1907, the Senate of the United
States made the same reservation.
(2) If the Monroe Doctrine were a principle of international
law, the United States would not be justified in changing its
attitude upon the doctrine, but probably it would
t^^^tSL!^^ not be seriously maintained that the United
uniteo states,
not a principle States might not enunciate another policy setting
tow. ^'^ aside the Monroe Doctrine.^ Reddaway well
says, " that it produced its desired effect as an
act of policy, but in no way modified the Law of Nations." *
(3) The doctrine * has always failed of direct legislative in-
dorsement in the United States. At times it
which it has ^^ ^'^^'^ Strenuously opposed by European
been powers. That it has been recognized, however,
recognized. , o ? #
to a certain extent, appears by the course of
events.^ It was in 1895 applied in the case of the inter-
vention by the United States in the dispute over the
> Hart, " The Monroe DoctriQe," pp. 349 £F.
* '* The Monroe Doctrine," VI.
* President Roosevelt in his message of December 3, 1901, said : '* The
Monroe Doctrine should be the cardinal feature of the foreign policy of all
the nations of the two Americas, as it is of the United States .... The Monroe
Doctrine is a declaration that there must be no territorial aggrandizement by
any non-American power at the expense of any American power on American
soil. . . . We do not guarantee any state against punishment if it misconducts
itself, provided that punishment does not take the form of the acquisition of
territory by any non- American power.*'
* See Tucker, " Monroe Doctrine." p. 116.
mDEPENDENCE AND INTERDEPENDENCE 85
boundary between Venezuela and British Guiana. Arbitration
settled this difficulty.^ In 1902, after use of force to collect
claims against Venezuela, Germany, Great Britain, and Italy
disavowing intention to acquire territory, submitted to arbitra-
tion.* Article 21 of the Treaty of Versailles recognizes the
Monroe Doctrine as a regional imderstanding '' for securing the
maintenance of peace."
(4) Before the Senate, January 22, 1917, President Wilson
proposed the adoption of the Monroe Doctrine as
2So«L '" " *^® doctrine of the world ; that no nation seek
to extend its polity over any other nation or people,
but that every people should be left free to determine its own
poHty."
(6) Other American policies have gradually been developed
in the western hemisphere. The proclamation of the Monroe
Doctrine emphasized the growth of the feeling that
^toAmexkaii ^j^^ states of America had interests peculiarly
American. The American states which had so
recently broken from European allegiance soon began their
endeavor to unite for common action on American matters.
(1) A congress of American states was called at Panama
in 1826.' This Congress of Panama did not realize the hopes
which had been entertained by some upon the possibility of
developing a distinctively American policy. It
Esrly COB'
of had, however, among its objects the promotion
^I^^^JJjJ^ of peace and union of American nations. In
1831, another similar congress was called. Five
South American states met at Lima in 1847. During the next
forty years there were several congresses called with the idea of
bringing the South American states into closer union and with
> Ann. Cyd. (1895). p. 741 ; (1896), p. 804 ; (1899), p. 845. also U. S. For.
Rel. 1896.
* V. 8. For. Rel. 1903. pp. 417 £F. ; 542 £F. ; 601 £F. ; U. S. For. Rel. 1904.
p. 509.
s American State Papers. 5 For. Rel., 839-905.
86 INTERNATIONAL LAW
the idea of providing means for the maintenance of amicable
relations among these states particularly through mediation and
arbitration.
(2) In 1888, after a considerable period of discussion, the
United States Congress authorized the President to call a
Pan-American Conference to meet at Washington in 1889.
This Conference voted various recommendations concerning
the general and particular relations of the Amer-
ConferenceB, ic&n states. Questions of private international
their aims jj^^ received much attention. Arbitration was
and result!.
indorsed as a means of settling international
controversies. Other matters, as extradition, patents, trade-
marks, etc., were discussed. This Conference was followed by
the Second Conference at Mexico, in 1901-1902, and the Third
at Rio Janeiro, in 1906. Resolutions were adopted at this
conference providing for the negotiation of conventions cover-
ing: (a) the status of naturalized citizens retiu^ng to the
country of their origin; (b) the codification of public and
private international law ; (c) patents, trademarks, and copy-
right law; and (d) arbitration of pecuniary claims. The
First Pan-American Scientific Congress held at Santiago, Chile,
1908-1909, gave much attention to international questions of
special interest to the American states. Subsequent congresses
have taken similar action.
(3) There have come to be in the Western Hemisphere certain
accepted international policies in which the Eivopean states
have only a remote or occasional interest. Cer-
d^iMoiwCTved ^^^ principles which European states have not
only in the yet admitted have by treaty been extensively
Hemisphere. adopted among American states, as in the case
of the principle of obligatory arbitration in the
event of international differences. The South American states
have in the instance of Chile and the Argentine Republic, by
the convention of May 28, 1902, led in the limitation of anna-
INDEPENDENCE AND INTERDEPENDENCE 87
ments.^ There has been manifested among the American
states m recent years an increasing tendency to stand together
and to develop policies which are American in character. As
in Europe there has grown up the idea of the balance of power,
so conunon interests and ideals have developed to some extent
an American or Pan-American policy. '
42. Non-intervention
With the right of independence goes the correlative obliges
tUm of fumrdfUervention, i.e,, of refraining from all acts that
would forcibly limit the freedom of another state. This obliga-
tion of non-intervention does not extend to the limitation of
acts involving no display or threat of force, as in the case of
mediation and arbitration. Nor can it be claimed that the
Migaiion of nonrdrderverUion can be urged against measures
undertaken by d state to preserve its fundamental right to
existence. There is no right of intervention, as has been some-
times argued, though an act of intervention may be some-
times justifiable in itself. ' Intervention is the attempt of one
or more states, even by use of force, to coerce another state in
its purely state action. The making of an alliance between
two may influence a third state in its action, but it cannot be
considered an intervention, nor is the tender of friendly offices
in the settlement of a dispute to which a state is a party, inter-
vention ; but when a state directly interferes with the exercise
of the lawful state authority in or by another state, it consti-
tutes intervention. Intervention may vary greatly in degree
and in character, whether it be armed or diplomatic. Each
case must be considered separately on its merits, and if in any
degree a justifiable measure, it must be on the highest grounds,
and the motives of the intervening state must be pure. While
it is still necessary to discuss the question of intervention in its
> I A. J. I. L. Doc, p. 294. * Moore. "American Diplomacy/' X.
* Bonfils. No. 295, "Pradier-Fod6r6," No. 355.
88 INTERNATIONAL LAW
various forms, yet, as Hall says : " It is unfortunate that pub-
licists have not laid down broadly and unanimously that no
intervention is legal, except for the purpose of self-preservation,
unless a breach of the law as between states has taken place, or
unless the whole body of civilized states have concurred in
authorizing it." ^ Collective intervention may be sanctioned
under a league of nations.
43. Practice in Regard to Intervention
The nineteenth century might be called the century of inter-
ventions, for its whole political history has been closely re-
lated to the application of measures of intervention of the
most varied sort. Naturally, all authorities do not agree as to
the causes underlying the action of the several states, nor as to
the nomenclature which should be used in describing these
measures. A review of some of the cases of intervention during
the nineteenth century shows that while the doctrine of non-
intervention has been more and more widely professed, the prac-
tice has been strongly influenced by political expediency.
Intervention for any cause may always be regarded by the
state whose independence is impinged as a hostile act, and a
ground for war, thus putting the matter outside the inter-
national law of peace.^
(a) As the right of existence is the first right of a state and
universally admitted, intervention may sometimes be used as
, ^ ^ means of maintaining this existence. In such
for self- a case it is clearly a matter of policy as to the
prMerra on. means which a state shall use, and if it resorts to
intervention rather than other means, it must have ample
grounds for its action in the particular case. A case of inter-
vention on the grounds of self-preservation which has caused
much debate is that of England in the two attacks upon Copen-
hagen in 1801 and 1807, on the groimd that it was necessary
> Hall. p. 298. * Ihid., p. 293.
INDEPENDENCE AND INTERDEPENDENCE 89
for England's supremacy of the seas, which formed her chief de-
fense, to prevent the union of the Danish forces with those of the
other powers. Intervention cannot be justified by any appeal
to general principles which inhere in the act itself. "The
facts of intervention are acts of the political existence of states.
Good or bad, according as the intervention is injiuious or
beneficial." ^ Of intervention as a method of state action, Sir
V. Harcoiut says : " It is a high and siunmary procedure which
may sometimes snatch a remedy beyond the reach of law.
Nevertheless, it must be admitted that in case of Intervention,
as in that of Revolution, its essence is illegality, and its justifi-
cation is its success. Of all things, at once the most unjustifi-
able and the most impolitic is an unsuccessful Intervention." *
Non-intervention is the obligation which international law
enjoins. It gives no sanction to a " right of intervention "
which would be entirely inconsistent with the right of indepen-
dence. The question of intervention is one of state policy only,
and is outside the limits of the field of international law. Inter-
vention is a method of state action which is justifiable only in
rare cases, and less and less justifiable as the growing mutual
dependence of states makes possible other methods less open to
objection. International law at the present day undoubtedly
regards intervention, when strictly necessary to preserve the
fundamental right of the intervening state to its existence, as a
permissible act, though contravening the right of independence
in another state.
(6) As international law must rest upon the observance of
certain general principles, it may in extreme cases be necessary
to intervene in order that these principles may
prerent iUegai be respected by certain states in their dealings
•^ with other states which, though weaker in physical
force, have equal rights in international law. How far any
state will act as champion of the law of nations is a question
1 Bonfils, No. 295. « " Letters to Hutoricus." p. 41.
90 INTERNATIONAL LAW
which it must decide for itself. Unquestionably international
law would look with favor upon measures necessary for its own
preservation.^
(c) Some authorities have maintained that intervention when
sanctioned by a group of states is justifiable. It is probable
interventioii ^^^^ ^ group of states would be less willing to
by general pursue an unjust course than a single state, and
that intervention under such sanction would be
more likely to be morally justifiable. It is, however, no more
legal than the same act by a single state ; and if general consent
is the only sanction, while the act may be expedient, advan-
tageous, and morally just, it cannot be regarded as upheld by
international law, nor can a single act of this kind establish a
principle. The several cases of such intervention under general
sanction can hardly be regarded as sufficientiy similar to estab-
lish a principle even upon the Eastern Question in Europe.*
It may be concluded that while general sanction of a considerable
group of states may, for a given interference, free a state from
moral blame and warrant the act as a matter of policy, yet it does
not give any international law sanction for intervention by
general consent.
{d) Many reasons have been advanced as justifying such
measures as intervention.
oH^^^tion. ^^^ Intervention to carry out provisions of
treaties of guaranty was formerly common, e.g.
intervention by one state to preserve the sanie form of gov-
ernment in the other or to maintain the ruling family. It is
now held that no treaty can justify interference
treatr in the internal affairs of a state not party to the
In general, intervention, because of treaty stipulations,
even when the state subject to the intervention is a party to
> Stowell, "Intervention/' p. 455.
* See Rplm-Jaequemyns, R. D. I., XVIII. 378, 506. 591.
INDEPENDENCE AND INTERDEPENDENCE 91
the treaty, is a violation of independence unless the treaty
provides for such measures, in which case the state has become
a protected state or entered into relations by which it has not
full state powers. Such treaties must be clearly state acts and
not acts of individuab " who from their position have the oppor-
tunity of giving to their personal agreements the form of a state
act." ^ While there is still difference of opinion as to the ques-
tion of intervention imder treaty sanction, the weight of opinion
seems to be decidedly to the effect that such intervention has no
ground of justification in international law.
(2) Intervention to preserve the balance of power, which was
regarded as a necessary means for the preservation of European
TooreMfTe peace, has been considered as justifiable till
the baiaace of recent times. Since the middle of the nineteenth
'*^*'' century the position has received less and less
support, though advanced in behalf of the preservation of the
Turkish Empire and of adjustments in the Balkan states. In
1854 Great Britain and France, on the appeal of the Sultan for
assistance against the Russian aggressions, determined to aid
him, " their said Majesties being fully persuaded that the exist-
ence of the Ottoman Empire in its present Limits is essential
to the maintenance of the Balance of Power among the States of
Europe." * The attitude at the present time seems to be that
the independence of a state is not to be violated for the preserva-
tion of any political balance or historical adjustment of political
relations.'
(3) Interventions upon the broad and indefinite ground
of humanity have been conunon and were generally upheld
Ob til ^y *^® writers to the time of Vattel. Since his
srooadsof day opposition to intervention of this kind has
*'^' gradually obtained favor. What the grounds of
humanity are, and which nation's ideas of humanity shall be
1 Hall. p. 297. *2 Hertalet. 1181. 1193.
* Lawrence, { 67. See alao 1 Halleck, 507.
92 INTERNATIONAL LAW
accepted as standard, have been questions difficult to settle
to the general satisfaction of states. For a state to set itself
up as judge of the actions of another state and to assume that
it has the right to extend its powers to settling and regulating
affairs of morals, religion, and the relations of public authority
to the subjects in another state, on the ground of maintaining
the rights of mankind as a whole, is to take a ground which the
conduct of any modern state, even the most civilized, would
hardly warrant. While it is admitted that a state or states
may sometimes interfere to prevent one state from unduly op-
pressing another, as in the intervention of the powers in Greece
in 1827, yet it is generally held that to interfere because the
internal affairs of a given state are not conducted in a manner
pleasing to the foreign state is to give a sanction to an act that
would result in far more evil than good. Such intervention has
often taken place. The " Holy Alliance," in attempting to
guard Europe from " the curse of Revolution," advocated in
practice a most dangerous form of intervention.^ Indeed, much
of the European history of the nineteenth century is but a his-
tory of successive interventions. In spite of all this, as Walker
says, " the rule regularly progresses towards more general recog-
nition, that non-intervention in the internal affairs of a state
is a law which admits of no exception to foreign powers, so long
as the operations of that state are confined in their effect to
the limits of the national territory." ^
Nevertheless, the United States interfered in the affairs
of Cuba on the ground of humanity. The President, in his
message of April 11, 1898, said, after a long statement of the
facts : " I have exhausted every effort to relieve the intolerable
condition of affairs which is at our doors. Prepared to execute
every obligation imposed upon me by the Constitution and the
law, I await your action." ' By joint resolution of Congress
> 1 Hertalet, 317. Ibid,, 658. * Walker, p. 151.
* Ann. Cyd. 1898, p. 159 : U. S. For. Rel. 1898, p. 700.
INDEPENDENCE AND INTERDEPENDENCE 93
of April 20, 1898, demand was made upon Spain to relinquish
its authority in Cuba, and the President was authorized to use
land and naval forces to carry the resolution into effect.^
(4) In time of civil war, on invitation of both parties^ a
foreign state may act as mediator, but unless the revolting
party has been recognized, this is mediation in
nB^Mtorin, & domestic sense rather than intervention in
^™ ^ the sense of international law.
Under other conditions there is a diversity of
view as to the proper coursfe of action.* Some deny with Vattel,
G. F. de Martens, Heffter, Fiore, Bluntschli, Wools^, and
others maintain or permit intervention in civil war at the re-
quest of one of the parties, though some of the authorities
do not permit intervention except on the invitation of the
parent state and not on that of the rebelling party. Blunt-
schU (§ 476) and Woolsey (§ 42) admit intervention only in
behalf of the party representing the state; Vattel and some
others permit intervention in behalf of the party which the
intervening state considers to have the right of the contest, thus
opening the arbitration of the contest to a foreign state. Both
of these positions are receiving less and less of sanction. Inter-
vention in behalf of the established state implies a doubt as to
which power within the state is the de facto power, and as Hall
says : " The fact that it has been necessary to call in foreign
help is enough to show that the issue of the conflict would
without it be uncertain, and consequently that there is a doubt
as to which side would ultimately establish itself as the legal
representative of the state."* It is plain to see that inter-
vention in behalf of the rebelling party is a violation of the
independence of the existing state. It is equally clear that
international law does not give a foreign state a right to judge
upon the justice or merits of domestic questions in another
state.
> 30 U. 8. 8t8. at Large, 738. « BluntachU. S 477. * HaU, p. 302.
94 INTERNATIONAL LAW
The principle may now be regarded as established by both
theory and practice that the invitation of neither party to a
domestic strife gives a right to a foreign state to intervene,
and that no state has a right to judge as to the merits of the
contest and to interfere in behalf of the party it thinks in the
right. Indeed, intervention because of civil war only is in
no case justifiable, though the consequences of such a dis-
turbance may warrant intervention upon other grounds.^
(5) Intervention on the ground of financial transactions is
not now sanctioned. A state may make any injustice done
On the Knmnd ^^ subjects by a foreign state a matter of diplo-
of finandAi matic negotiations. It has sometimes been held
^"** that contracts running between a state and the
subject or subjects of another state may, if violated, become
grounds of just intervention, and that the subjects had a right
to demand action by their sovereign. This ground is manifestly
insufficient, though each state is judge as to what measures it
will take in a given case. International law does not guarantee
the payment of loans which are merely personal transactions
between the individual and the state in its corporate capacity,
nor can the public law of one state be expected to hold in another.
Interference on such grounds is a matter of expediency and not
a matter of right. An attempt was made at The Hague in
1907 to embody the principles of the Drago Doctrine in a Con-
vention which should prohibit " recourse to armed force for
the recovery of contract debts claimed from the Government of
one country by the Government of another country as being
due to its nationals."
(e) In general, the best authorities seem to agree that at
the present time, owing to the ease with which other
measures may be taken, intervention can be admitted only on
the single ground of self-preservation. The numerous cases of
intervention upon varied grounds amply show that any other
< 1 Hertfilet, 664 ff.
INDEPENDENCE AND INTERDEPENDENCE 95
ground would be open to wide abuse, as has often been the case.
For general purposes of remedy for injury such measures as re-
torsion, reprisals, embargo, and pacific blockade
intMfenUon may be taken when a state deems it expedient and
jostifiAble only ... •! . • #
on snmads of is willing to assume the responsibility for such
measures.^ While intervention for the sake of
preserving the existence of a state which is ob-
serving its international obligations as a member of the family
of nations is a justifiable measure, it is not a right, but merely
a means sometimes justifiable to preserve a right, — the right of
a state to exist, which alone supersedes the obligation of non-
intervention.
iSeeCh. XV.
OUTLINE OF CHAPTER X
EQUALITY
44. BQUAUTT OF STATES EXTENDS ONLY TO LEGAL STATUS
46. mEQUALITIES AMONG STATES.
(a) Court precedence an old mtrk of inequality.
(b) Various inequalities in matters of ceremonial still exist.
(c) Inequalities in weight of influence in affairs.
(1) At the present time states classified on political grounds.
(a) The Great Powers.
(6) Instances of the practice of the Great Powers.
(c) Policy liable to change with e^qiediency.
(2) European alliances.
(3) Influence of the United States among American states.
06
CHAPTER X
EQUALITY
44. Equality of States Extends Only to Legal Status
The equality of states was an early premise of international
law.' This equality, however wide may have been its mean-
ing, as interpreted by some of the earlier writers, can now be
held to extend only to legal status. A state from its very being
as a sovereign unity must be legally equal to any other state.
Only those states which are members of the international circle
are regarded as possessed of this equality from the point of view
of international law. So far as legal attributes as states extend,
the states, members of the international circle, are equal, yet
that their weight in the world of affairs may vary by virtue of
other circumstances must be admitted. The legal status of
states is the same ; regardless of the form of state organization,
whether monarchy or republic; regardless of origin, whether
by division or union of former states or even if created in a
region hitherto outside the jurisdiction of any state ; regardless
of area, population, wealth, influence, etc.; regardless of re-
lations to other states provided sovereignty is not impaired;
regardless of any change in the form of state organization, as
from a republic to a monarchy or even of a temporary lapse in
the exercise of sovereignty.
46. Inequalities among States
While all states, members of the family of states, are equal
in international law so far as their legal attributes are con-
cerned, they may be very unequal in other respects.
1 For fuU treatment, see Dickinaon, "Equality of States."
97
98 INTERNATIONAL LAW
(a) One of the oldest marks of inequality is that of court
precedence, which for many years was a fertile
enco lA old ~ source of difficulty, and was at last settled to the
?*^|^ extent of ranking by title of diplomatic repre-
sentative by the Congress of Vienna in 1815.^
(b) Inequalities in matters of ceremonial of various kinds
have not disappeared. These may be based upon tradition,
or on conventional grounds, and frequently give
kieQu^tiot in "^ ^ difficulties if disregarded. These cere-
matters of monials may be (1) political, as between the
stuieziit. sovereigns in their omcial personal capacity as
emperors, kings, dukes, etc., (2) court and diplo-
matic, in interstate negotiations, (3) treaty, as in dUemai or
in the alphabetical signing of treaties, (4) maritime ceremonial,
in salutes, etc.
(c) There may be inequalities in weight of influence in affairs.
(1) In Europe there has been distinctly recognized in political
practice an inequality of the states, and they were classed as
" the great powers," " the minor powers," and
weight of tn- Sometimes such states as those of the Balkan
^V^ ^ peninsula were referred to as " the little powers "
or " third-rate states." These divisions were
based merely upon political grounds, and states might pass
from one division to another as their wealth, area, or influence
increased or decreased.
Before 1914 the Great Powers, generally mentioned officially
upon the continent in the alphabetical order of their names in
French, i.e. AUemagne, Angleterre, Aidriche, etc.,
timettatot were Germany, Great Britain, Austria, France,
pditoo*^" Italy, and Russia. During the sixteenth and
grotindt; the seventeenth centuries Spain was numbered with
the Great Powers. Sweden was so ranked in the
seventeenth century. Italy was counted with the great powers
1 See Sec. 72 (6).
EQUALITY 99
after 1870. The union of several powers upon certain lines
of policy, since early in the nineteenth century, has been
called " the concert of Europe," " the primacy of the Great
Powers," etc. It was not the purpose of these Great
Powers to establish new rules of international law; but as
enunciated by the five powers, November 15, 1818, it was " their
invariable resolution never to depart, either among themselves,
or in their relations with other states, from the strictest observa-
tion of the principles of the Rights of Nations." ^ Since the
World War the Great Powers have been considered as the United
States, the British Empire, France, Italy and Japan.
That the practice of the Great Powers has not been strictly
in accord with the principles announced in 1818, a glance will
show. The immediate action of Austria, Russia,
the practice of ^^^ Prussia in the Congress of Troppau, 1820, car-
^J^^ ri©d the principle of interference in the internal
affairs of states so far that Great Britain found
itself compelled to dissent. This continuance of the policy of
the Holy Alliance in putting down movements in favor of
popular liberty, wherever arising, led to gross violations of
international rights. Nor did Great Britain become a party
to the acts of the Congress of Verona in 1822, which led to
intervention to prevent changes in the internal organization
of Spain in 1823. The struggles of the Greeks for independ-
ence at about this time were naturally regarded by those up-
holding the ideas of the Holy Alliance as dangerous to those
states desiring to prevent revolutionary movements, but the
narrow policy of the Alliance was gradually losing support. The
opposition of Great Britain and the death of Alexander of
Russia in 1825 hastened its speedy fall. Meantime the idea
of a collective authority in the Great Powers had been main-
tained. This began to be exercised in behalf of the Greeks
in 1826, and throughout the nineteenth century was repeatedly
> 1 Hertslet, 574.
100 INTERNATIONAL LAW
exercised in the same behalf, sometimes unselfishly, often from
motives of mixed character. During the first half of the nine-
teenth century the Great Powers continually kept a close sur-
veillance over Grecian affairs, and enforced their judgments
in regard to Greece by force (destruction of Turkish fleet at
Navarino, 1827) ; by providing form of government and naming
monarch (1829 and later) ; by fixing and changing boundaries
(1829 and often) ; by pacific blockade (1827, 1850, 1886, 1897) ;
by regulating financial affairs, and by other means of varying
degree of force.^
The Eastern question particularly occupied the Concert,
and the disposition of the territory once within the Turkish
jurisdiction offered a fertile field for varying policy. The estab-
lishment of Belgium as a neutral state by the treaty to which
Belgium was itself a party afforded another example of the
infiuence of the Great Powers. Since 1839 Egypt has also been
subject to frequent control by the Great Powers.
From 1885 the unappropriated portion of Africa was brought
within the range of action of the Concert by the theory of the
sphere of* influence.
The Concert of the Great Powers showed a policy that was
liable to change with expediency. The two great treaties
«^« « ..1 of the Concert were those of Paris, 1856, and
Policy liable
to change with Berlin, 1878. Of these Holland says: "The
expe ency. treaties of Paria and of Berlin thus resemble
one another, in that both alike are a negation of the right of
any one Power, and an assertion of the right of the Powers
collectively, to regulate the solution of the Eastern question." *
The fact that the action of the Great Powers has been regarded
as binding and tacitly accepted in Europe in certain questions
in the East, Egypt, Greece, and Belgium does not give the
1 For detailed summary, 1826-1881, see Holland, " European Concert in the
Eastern Question," Ch, II.
s ** European Concert in the Eastern Question," p. 221.
EQUALITY 101
sanction of international law to the action. The most that
could be said was that it was an alliance of a loose character,
whose authority was in proportion to the force behind its de-
cisions.^
(2) Another feature in European politics giving rise to further
inequalities in practice was introduced by the alliance of
Germany and Austria in 1879 and Italy in 1882,
which was till 1914 commonly known as the
Triple Alliance. The policy of this belt of powers separating
Eastern from Western Europe materially affected the action
of the other powers. The " friendly understanding " between
France and Russia soon after the Triple Alliance afforded a
measure of counter-check upon the action of the other powers.
The exact terms of the compact of Germany, Austria-Hun-
gary, and Italy were not divulged at the time, although co-
operation was assured in the event of hostile relations. The
Alliance did not prevent friendly relations between the parties
to it and the other powers.*
(3) The United States upon the American continent in the
enunciation of the Monroe Doctrine, and in the
^J^JJjJJ^ interpretation of it, assumed at times a position
statM ftmons as arbiter among the American states in some
statM. respects similar to that of the European Concert
among the European states. This attitude of
the United States has weight in international practice, but can-
not be regarded as part of international law.
^ Lawrence, *' Disputed Questions," V.
* Pribram, " Secret Treaties of Austria-Hungary," p. 65.
OUTLINE OF CHAPTER XI
JDIUSDICTION
M. JURISDICTION IN GENERAL.
47. TERRITORIAL DOMAIN AND JURISDICTION.
4a KETHOD OF ACQUISITION OF TERRITORIAL JURISDICTION.
(a) By right of discovery of a new land.
ip) By effective and continued occupation of a territory.
(1) The Hinterland Doctrine.
(2) Uncivilized peoples the. rightful occupants of the soil.
(e) By conquest of a territory, usually a result of military occupation.
(4) By cession through the transfer of territory.
(1) By gift.
(2) Bj exchange.
(8) By sale.
(4) By special agreement.
(«) By prescription, or long-continued possession.
(/) By accretion, or change in land areas ^ear the boundary of a
state.
(g) By lease.
48. QUALIFIED TERRITORIAL JURISDICTION.
(a) In protectorates the external affairs and international relations
are usually under the direction of the protecting state.
(p) In a sphere of influence the aim is to secifre the rights without
all the obligations.
(e) In areas under mandates under the League of Nations.
50. MARITIME AND FLUVIAL JURISDICTION.
51. JURISDICTION OF RIVERS.
(a) Rivers which traverse only one state.
(6) Rivers which traverse two or more states,
(c) Rivers with opposite banks under jurisdiction of two
states.
52. THE NAVIGATION OF RIVERS.
(a) General rules for river navigation.
(b) Confirmation of rules by conventions.
103
53. jmuSDICnON 07 ENCLOSED WATERS.
(a) Exclusive jtirisdictioii of a state over the waters wholly witfahi
its borders.
(b) Jurisdiction over gulfs, bays, and estuaries in the state or states
enclosing them.
(e) Jurisdiction over straits less than six miles in width in the
shore state or states.
(1) Jurisdiction over the Danish sounds.
(2) The Bosphorus and Dardanelles.
(d) Jurisdiction of canals similar to that of straits.
(1) The Suez Canal.
(2) The Panama Canal.
(8) The Corinth and Kiel Canals.
64. THE THREE-lftlLE LIMIT.
(a) Statement and origin of the principle.
(b) A wider limit sometimes claimed for special purposes.
65. JURISDICTION OVER FISHERIES.
(a) Fishing on the high sea a right belonging to all states alike.
(b) Special privileges in fishing, as in the case of the Canadian
fisheries.
(c) The disputed question of seal-fishing in the Bering Sea.
66. JURISDICTION OVER VESSELS.
(a) Two classes of vessels.
(1) Public.
(2) Private.
(b) Nationality of a vessel determined by its flag or papers.
(c) General exercise of jurisdiction over vessels.
(1) Exclusive over public and private vessels on high seas
and in home waters.
(2) Exclusive over public vessels in foreign waters in regard
to matters of internal economy.
(a) Extent of immunities of the persons on a ship
of war in a foreign harbor. ,
(b) The right of asyltmi on board a ship of war.
(c) Immunities of other vessels in public service.
(3) Varying over private vessels in foreign waters.
(4) Special exemption of semi-public vessels.
67. AERIAL JURISDICTION.
68. JURISDICTION OVER PERSONS AND THE QUESTION OF
NATIONALITY.
69. JURISDICTION OVER NATURAL-BORN SUBJECTS.
104
eO. JURISDICTION OVER FOREIGN-BORN SUBJECTS.
(a) The rule of jus mngniiiiii, i.e., the child inherits the nationalitj
of his father.
(b) The rule of jus soli, ie., the place of birth determines the
nationalltj.
(c) Variations In laws.
61. JURISDICTION BT VIRTUE OF ACQUIRED NATIONALITY.
(a) B)r marriage a woman in most states acquires the nationality
of her husband.
(b) By naturalization, or an act of sovereignty by which a foreigner
is admitted to citizenship in another state.
{e) By annexation of the territory upon which a person resides.
(4) The effect of naturalization on a person in his relations to his
adopted and native states,
(e) Incomplete naturalization or the effect on a person of his
declaration of intention to become a citizen.
(1) Citizenship and liability to military service.
(2) Municipal laws and naturalization.
6S. JURISDICTION OVER ALIENS.
(a) Qualified jurisdiction of native state over subjects abroad.
(1) Right to make emigration laws.
(2) Recall of citizens for special reasons.
(8) Criminal jurisdiction over subjects who have committed
crimes In a foreign state.
(4) Protection of subjects in a foreign state.
(b) Jurisdiction of a state over aliens within its territory.
(1) Right of exclusion.
(2) Right of expulsion.
(8) Right to conditional admission.
(4) Restrictions upon settlement.
(5) Right to levy taxes.
(6) Sanitary and police jurisdiction.
(7) Jurisdiction for crimes committed within territorial limits.
(8) Maintenance of public order.
(9) No rights to demand military service for political ends.
(10) Freedom of commerce.
(11) Holding and bequeathing of property.
(12) Freedom of speech and worship.
(c) Passport a means for establishing the identity of an alien.
68. EXElfPTIONS FROM LOCAL JURISDICTION GENERALLY
MADE FOR PERSONS REPRESENTING THE AUTHORITY
OF A FRIENDLY STATE,
(a) Extraterritoriality, or immunity from jurisdictioiL
105
64. EXEMPTION ^ROM LOCAL JURISDICTION OF SOVEREIGNS
SOJOURNING IN THEIR OFFICIAL CAPACITY IN FOREIGN
COUNTRIES.
M. EXEMPTIONS OF STATE OFFICERS.
(a) Wide immtinity allowed diplomatic agents.
(6) Exemptioiis granted to consuls to facilitate effecttve perf onn-
ance of their duties.
(c) A foreign army entering a state, by permission of its sovereign,
is free from that sovereign's jurisdiction.
(d) A vessel 6f war in a foreign state free from local jurisdiction.
66. SPECIAL EXEMPTIONS.
(a) In certain Oriental states special exemptions regulated by
treaty.
(1) General rules in regard to penal matters.
(2) General rules in regard to civil matters.
(6) Mixed courts in Egypt.
67. EXTRADITION.
(a) Persons liable to extradition vary according to treaties.
(5) Limitations as to jurisdiction over a person extradited.
(e) Conditions necessary for a daim for extradition.
{d) Procedure in cases of extradition based on definite principles.
66. SERVITUDES.
(a) International servitudes, positive and negative.
(6) General servitudes.
106
CHAPTER XI
JDIUSDICnON
46. Jtirisdiction in General
JuBiSDiCTiON is the right to exercise state authority, and
for the purposes of international law may be classified as (a)
territorial or land jurisdiction, (b) fluvial and maritime^ (c) aerialj
and (d) jurisdiction over persons.
>^.
47. Territorial Domain and Jurisdiction
The word '* territory " is sometimes used as equivalent to
domain or dominion or to an expression covering the sphere of
state control. Territory is also used in the stricter sense of the
land area over which a state exercises its powers. In this
stricter sense, territorial jurisdiction refers to the exercise of
state authority over the land within its boundaries and over
those things which appertain to the land. The growing inter-
national importance of railroads, telegraph, and other appur-
tenances has introduced new topics which were not considered
m early treatises, and are still under discussion.
The fundamental law of territorial jurisdiction is that a
state has within its boundaries absolute and exclusive juris-
diction over all the land and those things which appertain
thereto. Certain exemptions are specially provided in inter-
national law to wluch all states are considered as giving ex-
press or tacit consent. In other respects than those mentioned
under exemptions, the state may, as sovereign, exercise its
authority at discretion within the sphere it has set for itself.
107
108 INTERNATIONAL LAW
* The state has, as against all other states, an exclusive title
to all property within its territorial jurisdiction. As regards
its own subjects, it has the paramount title which is recognized
in the right of eminent domain, or the right to appropriate
private property when necessary for public use. A state may
also in its corporate capacity hold absolute ownership in prop-
erty, as in its forts, arsenals, ships, etc., or may extend owner-
ship to other forms of property provided this does not imperil
international rights.
The state also has the right to enforce a lien on the land
and what appertains to it in the form of taxes.
48. Method of Acquisition
The method of acquisition of territorial jurisdiction is a
subject which has received much attention in international
law, particularly because of the remarkable expansion of the
territorial area of states within the modern period of inter-
national law since 1648.
The methods conunonly considered are: (1) discovery, (2)
occupation, (3) conquest, (4) cession, (5) prescription, (6) ac-
cretion.
(a) In the early period of European expansion through dis-
covery, the doctrine that title to land hitherto unknown vested
in the state whose subject discovered the land,
discovery of was Current. Gross abuse of this doctrine led
a new n . ^^ ^^ modification that discovery without occu-
pation did not constitute a valid title to jurisdiction. As the
field of discovery has grown less, the importance of a definition
of occupation has decreased.
(b) Occupation was held to begin at the time of effective
application of state authority, and strictly to continue only
during the exercise of such authority. In fact, however, the
title by occupation was also held to extend to the adjacent un-
occupied territory to which the state might potentially extend
JURISDICTION 109
the exercise of its authority, or where it might from time to
time exercise its authority in an undisputed manner. Title
by occupation extended as a rule to that area,
•nd coiitinoed ^^^ under the jurisdiction of another state, which
ocCTpation of a ^^g necessary for the safety of the occupied area
or was naturally dependent upon it, as to the
territory drained by a river of which a given state held the
mouth.
(1) The " Hinterland Doctrine," brought forward during the
later years of the nineteenth century, advanced the idea that
no such limits as above should bound the area which could
be claimed on ground of occupation, but that coast settlements
gave a prima facte title to the unexplored interior.
(2) While the uncivilized peoples living within an area to
which a civilized state claimed jurisdiction by virtue of occu-
pancy were often unjustly treated, they however
^^|2J^ "were admitted to be the rightful occupants
rightful oeen- of the soil, with a legal as well as just claim to
2^ retain possession of it, and to use it according
to their own discretion, though not to dispose
of the soil at their own will, except to the government claiming
the right of preemption. . . . The United States adopted
the same principle, and their exclusive right to extinguish the
Indian title by purchase or conquest, and to grant the soil, and
exercise such a degree of sovereignty as circumstances required,
has never been judicially questioned." ^ I
(c) Conquest in the technical sense of the status of a territory
which has come permanently under the juris-
J^^J^JJ^^ diction of the enemy is distinct from military
usually a retittc occupation, which is a simple fact supported by
of iBJlitary #
oocoyatUm. force.
Military occupation may pass into conquest
(1) by actual occupation for a long period, with intention on
1 3 Kent Com. 379, 380; 5 U. S. Comp. StB. {{ 3080 et mq.
110 INTERNATIONAL LAW
the part of the occupier to continue the possession for an in-
definite period, provided there has not been a continued and
material effort upon the part of the former holder to r^ain
possession. If, after a reasonable time, this effort to regain
possession seems futile, the conquest may be regarded as com-
plete. Each state must judge for itself as to the reasonable-
ness of the time and futility of the effort. (2) Conquest may
be said to be complete when by decree, in which the inhabitants
acquiesce, a subjugated territory is incorporated imder a new
state. (3) A treaty of peace or act of cession may confirm the
title by conquest.*
(d) Transfer of territory by cession may be by gift, exchange,
sale, or other agreement.
By cenioii ^^^ ^^^ transfer by gift is simple, and carries
tbnmtih such obligations as the parties interested may
gift, euhiuige, undertake. In 1850, Great Britain ceded to the
sale, or otiier United States " Horse-shoe Reef " in Lake Erie,
agreement. . . '
for the purpose of the erection of a lighthouse,
" provided the Government of the United States will engage
to erect such lighthouse, and to maintain a light therein ; and
provided no fortification be erected on said Reef." '
(2) Transfer of territory by exchange is not common in modem
times. By the Treaty of Berlin, 1878, a portion of Bessarabia,
given to Roumania by the Treaty of Paris, 1856, was given
back to Russia, and Roumania received in exchange a portion
of Turkey.*
(3) Transfer of territory by sale has been frequent. From
1311, when the Markgraf of Brandenburg sold three villages
to the Teutonic knights, down to modern times, instances of
sale might be found, but from the nineteenth century numerous
instances occurred which have established the principles.
1 In case of the United States, while the President may after declaration
of war conquer and hold foreign territory, the joint action of the President
and Senate is necessary to make the title complete by treaty.
« 1 Treaties of U. S. 663. » IV Herts et. 2745. 2791.
JURISDICTION 111
Napoleon sold Louisiana to the United States in 1803, the
Prince of Monaco made a sale to France in 1851, Russia sold
Alaska to the United States in 1867, the Netherlands sold
African colonies to Great Britain in 1872, Sweden sold the
island of St. Barth£lemy to France in 1877, the United States
bought the Philippines in 1898 and the Virgin Islands in 1917.
The fact of the sale is not a matter of international law, but is
purely within the range of the public law of the countries con-
cerned. The change of jurisdiction of the area gives rise to
certain possible complications which may involve principles of
international law, though generally the conditions of sale settle
such questions.
(4) Transfers of territory by special agreements, as payment
of an indenmity, reparation for an injury, or the like have
taken place.
{e) Prescription, or the acquisition of territory by virtue
of long-continued possession, is similar to prescription in pri-
^^^^ vate law as applied to the acquisition of property
by persons.* The recognition of this principle
^^j^lll^^^^^ prevents many disputes over jurisdiction of
territory which originally may have been acquired
in a manner open to question, e.g, the holding of the territory
by the states parties to the partition of Poland might, through
long-continued possession, become valid by prescription if not
valid by the original act.
In regard to prescription, it should be observed that (1) it
is a title valid only against other states. The inhabitants
do not necessarily lose rights originally possessed. (2) This
method avoids perpetual conflicts on ground of defect of original
title. (3) Prescription may be considered as effective when
other states have for a considerable time made no objection
threatening the exercise of jurisdiction by the state in possession.
While some authors deny this right, it is generally admitted in
i Indiana v. Kentucky, 136 U. S. 479 ; Maryland v. West Virginia, 217 U. 9* 1«
112 INTERNATIONAL LAW
fact, and by mdst of the leading authorities acknowledged in
theory.^
(/) When land areas in the neighborhood of the boundary
of a state are changed, territory may be acquired by accretion.
Byftccretioii (^) ^^^ formed by aUutium or other cause
or change in near the coast of a state is held to belong to that
land areas noar ^ , .
the boondarj of State. Lord Stowell, m 1805, held that mud
a aute. islands formed by Muxium from the Mississippi
River should for international law purposes be held as part
of the United States territory.* In general, following the
Roman law, aUvmum becomes the property of the state to which
it attaches.' (2) Where a river is the boundary, the rule
is well established that islands formed on either side of the
deepest channel belong to the state upon that side of the chan-
nel ; an island formed mid-stream is divided by the old channel
line. (3) When a river's channel is suddenly changed so as
to be entirely within the territory of either state, the boundary
line remains as before in the old channel. So also the boundary
line of territory is not changed, even if the bed of a lake be
changed.^
ig) Transfer of jurisdiction by lease became common from the
latter part of the nineteenth century. Ordinarily these leases
were for periods of twenty-five or ninety-nine years. China
made many of these leases to European powers.' These powers
proceeded to fortify the leased areas as would be usual in territory
to which title was secured. The agreements of the Conference
on Limitation of Armament, 1921-1922, provided for the return of
some of the leased territory. The lease of Port Arthur was not
considered.
The United States leased the Panama Canal Zone from
> See diflcussion in I Hyde, 192. * The Anna, 5 C. Rob., 373.
» *• Institutes," II, 1, 20.
«Ck)oley v. Golden, 62 Mo. App. 52; Missouri v. Nebraska, 196 U. S. 23;
Nebraska o. Missouri, 197 U. S. 577.
* U. 8. For. ReL 1900, p. 383.
JURISDICTION 113
Panama in 1903 in perpetuity with *' all the rights, power and
authority " " which the United States would possess and exer-
cise if it were the sovereign of the territory." The Convention
provided for a payment of ten million dollar^ by the United
States on exchange of ratifications and for an annual payment
of $250,000 per year after nine years.^
49. Qualified Territorial Jurisdictton
Qualified territorial jurisdiction is exercised in protectorates,
in spheres of infiuence, and in mandates.
(a) The protecting state usually acquires the jurisdiction
over all external affairs of the protected community, often
including territorial waters, and assumes the direction of its
international relations. A measure of jurisdiction of those
internal affairs which may lead to international complications
is also generally assumed by the protecting state, e.g. treat-
ment of foreigners in the protected territory, relations of pro-
in protoc- tected subjects in foreign countries, use of fiag,
tontM. etc. The conditions of protected states vary
greatly, hardly the same description holding for any two.
It may be safe to say that (1) the protecting state cannot
be held responsible for the establishment of any particular
form of government; (2) a reasonable degree of security
and justice must be maintained. As to what constitutes
a " reasonable degree," the circumstances of each case must
determine. The protecting state is bound to afford such jus-
tice and security. (3) The protecting state must be able to
exercise within the protected area such powers as are necessary
to meet its responsibilities.
(6) The term " sphere of infiuence " was used after the Berlin
Conference, 1884-1885, to indicate a sort of attenuated pro-
tectorate in which the aim was to secure the rights without
the obligations. First applied to Africa in the partition of
1 2 Treaties, p. 1340.
114 INTERNATIONAL LAW
the unexplored interior among the European powers — Great
Britain, Grermany, France, Italy, Portugal — it was later ex-
in ft sphere tended to other regions. This doctrine of mu-
of influence. ^^,^1 exclusion of each from the " spheres " of all
the others cannot be held to bind any states not party to the
agreement.
This " sphere of influence " idea, as well as the " Hinterland
Doctrine," was of temporary importance only, owing to the
limited area open to occupation. It was maintained that within
the " sphere " the influencing state had jurisdiction to the ex-
clusion of another state, and that it had a right to occupy the
territory later, if advisable. The influencing state disclaimed
all obligations possible.
(c) Article 22 of the League of Nations Covenant provides
that " the tutelage " of certain regions ** should be intrusted
to advanced nations," " as mandatories on behalf of the
League." " The character of the mandate must differ," ao-
^ . cording to circumstances, from administrative
lAenfUtes. . .
advice to control as " integral portions " of the
mandatory state. " In every case of mandate, the mandatory
shall render to the Council an annual report in reference to the
territory conmiitted to its charge." The territory was Turkish,
Central and Southwest African, and Pacific Islands.
60. Maritime and Fluvial Jurisdiction
Wheaton states as a general principle of maritime and fluvial
jiu'isdiction : " Things of which the use is inexhaustible, such
as the sea and running water, cannot be so appropriated as to
exclude others from using these elements in any manner
which does not occasion a loss or inconvenience to the pro-
prietor." ^ While the tendency of international poUcy is
toward unrestricted freedom of river navigation, yet the prin-
ciple as enunciated by Wheaton cannot be said to be established
1 Wheat. D., § 193, p. 274.
JURISDICTION 115
in practice. The American and Continental writers have
generally favored the principle enunciated by Wheaton. Eng-
lish writers have contended against this position as a right, but
admit that the principle is becoming established by numerous
treaties and conventions. As to the high sea, the principle may
be said tb be established.
61. Jurisdictioa of Rivers
The jurisdiction of rivers is a question which is not identical
with the right of navigation of rivers, and may best be con-
sidered apart. The question of jurisdiction is one of general
international principle, while the question of river navigation
is, in many instances, one of particular provision.
The rivers fall under three classes : —
1. Rivers which traverse only one state.
2. Rivers which traverse two or more states.
3. Rivers upon the opposite banks of which different
states have jurisdiction.
(o) Rivers which traverse only one state are exclusively
Sirafs hkh within the jurisdiction of that state. This juris-
timvena only diction may extend even to the forbidding of the
*°* use of a river to other states, and justifies the
state in prescribing such regulations for its use as it may
deem fit.
(6) Rivers flowing through two or more states are for those
parts within the boundaries of each state under its jurisdiction
Riv«ra which '^^ ^® purposes of police, tolls, and general
trsverMtwo regulations. The right of absolute exclusion
or more . ^j states above or below by any one of the states
through which a river flows has been the subject of much dis-
cussion, and authorities of great weight can be found upholding
either side.
(c) When two states have jurisdiction upon opposite banks
of a river, the jurisdiction of each state extends to the middle
116 INTERNATIONAL LAW
of the main chahnel or thalweg. Before the Treaty of Lune-
ville (Art. VI), 1^1, it had been common to consider the limit
of jurisdiction of the two states the middle of
?i^^^^ - the river, a line much more difficult to deter-
under jQxis- mine, and more changeable than the channel
different tutee. ^^^' '^^ thalweg has been frequently confirmed
as the accepted boundary where no conventions
to the contrary existed.* The jurisdiction over bridges between
two states has by convention often been fixed at the middle
point.*
02. The Navigation of Rivers
The laws of jurisdiction of rivers are generally accepted.
The early idea that there was a natural right of natigaiion,
and innocent passage, received less support during the nine-
teenth century than formerly. The history of river navigation
during the nineteenth century, as shown in the discussions be-
tween the representatives of various nations, and in the treaties
and conventions agreed upon, as well as in treaties and declara-
tions voluntarily made in regard to navigation of rivers, seems
to furnish general rules :
(a) 1. That international law gives to other states no right
of navigation of rivers wholly within the jurisdiction of another
^ ^ , state.
Oenernrulet
for river 2. That when a river forms the boundary of
nn?igetion. ^^^ ^^ more states it is open to the navigation
of each of the stittes.'
3. That when a river passes throtigh two or more states,
international laW gives no right to one of the states to pass
through the part of the river in the other state or states. There
^ Ed. Engelhardi, " Du regime conventionnel des fleuves intematioiiaux,"
Ch. II. ; 1 Moore, % 128; Louisiana v. Mississippi, 202 U. S. 1.
» 2 Nys. 437.
* This was provided for in the Anglo-American Ck>nvention on Canadian
Boundary waters, 1909.
JURISDICTION 117
is a strong moral obligation resting upon the states below to
allow freedom of navigation through the river to the states
upon the upper course of the river. The right of innocent use,
innocent passage, freedom of river nangation, has been main-
tained on various grounds and in various forms, by many
authorities.^ Those who take a position opposed to this cbim
assert that the navigation of rivers is, and properly should be,
to avoid more serious complications, a matter of convention. [
(b) In fact, since the French Revolution, the subject has so
frequently been a matter of convention^ as to establish the
general principles, that in case of no special restrictions, river
navigation is free, subject to such regulations as the state
____ ^-_ having jurisdiction may deem necessary, and that
of rules by the privilege of navigation carries with it the use
**""*" of the river banks, so far as is necessary for pur-
pose of navigation.' The Treaty of Versailles, 1919, inter-
nationalizes to a greater degree the river systems of Central
Europe and places representatives of non-riparian states on
commissions of control. *
63. Jurisdiction of Inclosed Waters
(a) The rule in regard to waters wholly within the territory
of a state such as lakes, etc., is that the jurisdiction is exclusively
•__, ^1^ ill that state. The decisions of the United States
waten wholly Supreme Court have sometimes regarded the
mrlmifiii. Great Lakes as "high seas," though treaties,
opinions, and practice have generally been such as would find
sanction only in exclusive jurisdiction.^ The Boundary Waters
iGrotiuB, II. ii, 12-14; Pufendorf, III. 3, 4: Vattel. §§ 104, 126-130. 132-
134 ; Bluntschli, § 314 : Calvo, (§ 259, 290-291 ; Fiore. (§ 758. 768 ; Carnaua-
Amari, " Tniitfe," §2, Ch. VII. 17; Hefftor. §77; Wheat. D., § 193.
< Wheat. D.. (ft 197-204; 1 Moore, ( 129; Pradier-Fod6r6. " Trait6."
(§ 727-755.
•Justinian, " Institutes," 2. t. 1. (( 1-5.
« Arts. 327-362.
•United States «. Rodgers, 150 U. S. 249.
118 INTERNATIONAL LAW
Convention between the United States and Great Britain, 1909.
opens to British vessels the navigation of Lake Michigan.^
(6) Gulfs, bays, and estuaries are regarded as within the
jurisdiction of the state or states inclosing them, provided
, -> ^. ^ the mouth is not more than six miles in width.
Jttils^ictioii
0Tersii]f8.bAy8. A line drawn from headland to headland, on
"* *** either side of the mouth, is considered as the
coast line of the state, and for purposes of maritime jurisdic-
tion the marine league is measured from this line. Waters
having wider openings into the sea have been claimed on special
grounds, as the claim of the United States to territorial juris-
diction over the Chesapeake and Delaware bays. France and
Germany claim jurisdiction over gulfs having outlets not over
ten miles in width. Between states parties to treaties special
claims have been made and allowed. These treaty stipulations
do not necessarily bind states not parties to the treaty, e,g.
treaty between Great Britain and France, 1839. " It is agreed
that the distance of three miles, fixed as the general limit of the
exclusive right of fishing upon the coasts of the two countries,
shall, with respect to bays, the mouths of which do not exceed
ten miles in width, be measured from a straight line drawn from
headland to headland." '
More recent tendency is toward the acceptance of the ten-
mile limit of width of mouth, though there is a reasonable claim
that some ratio should be fixed for very large interior water
areas to which the entrance, though more than ten miles, is
yet relatively narrow.' On August 7, 1914, Uruguay announced
the ten-mile rule for purposes of neutrality. Netherlands had
made a similar proclamation August 5, 1914. Italy by a decree
of August 6, extended the limit to twenty miles, while Morocco
for certain purposes assumed a twelve-mile limit on JulylS, 1917.
1 Art. 1. < 1 Moore, ( 163.
*See also Question V, North Atlantic Fisheries Arbitration, 1910, Wilson,
*' Hague Arbitration Cases," 180.
JURISDICTION 119
(c) Straits less than six miles in width are within the juris-
diction of the shore state or states. In case two shores are
jnrisdictioii territory of different states, each state has juris-
oTerstraiti. diction to the middle of the navigable channel.
Where a state owns both shores of a strait which does
not exceed six miles in width, the strait is within its
territorial jurisdiction, though other states have the right
of navigation. This right of navigation is in general conferred
upon both merchant and war vessels of states at peace with the
territorial power. These vessels must, however, comply with
proper regulations in regard to navigation. The claim to exclu-
sive jurisdiction over such narrow straits has been abandoned.
The claim of the king of Denmark to jurisdiction over the
Danish Sound and the Two Belts, which entitled him to levy
Tnrifldictioii ^^^ upon vesscls passing through, was based
over the on prescription and fortified by treaties as early
as the one with the Hanse towns in 1368. Against
these tolls, as an unjust burden upon conunerce, the United
States had protested for many years, sending a special mission
to Denmark in 1811, at the same time maintaining that Den-
mark had not the right of exclusive jurisdiction. The European
states in 1857 paid a lump sum in capitalization of the sound
dues. The United States, refusing to recognize the right of
Denmark to levy tolls, paid $393,011 in 1857 in consideration of
Denmark's agreement to keep up lighthouses, etc.
The navigation of the Bosphorus and Dardanelles has been
a subject of discussion and treaty since 1774, when Russia
Bo« honti ^°^P®'^'^ Turkey to open these straits to the
andDarda- passage of merchant vessels. War vessels were
" excluded till 1856 when, by convention attached
to the Treaty of Paris, such vessels were admitted for special
purposes of service to the embassies at Constantinople and
protection of improvements on the Danube waterway. By the
Treaty of 1871 the Sultan might admit other war vessels, if
120 INTERNATIONAL LAW
necessary for carrying out terms of the Treaty of Paris. Pro-
vision for freedom of navigation of the Dardanelles, the Sea of
Marmora, and the Bosphorus was made in the treaty of Sevres,
August 10, 1920. The United States has never acknowledged
that the Sultan had the right to exclude its war vessels, though
always asking permission of the Sultan to pass the Dardanelles.
The United States contended for the opening of the Turkish
Straits as a result of the World War.
As a generally accepted principle the law may be stated
as follows : straits connecting free seas are open to the navi-
gation of all states, subject of course to reasonable jurisdic-
tion of the territorial power.
(d) Canals connecting large bodies of water have been re-
garded as in most respects subject to jurisdiction similar to
Jurisdiction ^^^^ ^' straits. Yet as these canals are con-
oTer canals. structed at a cost, the state having jurisdiction
must also be given right to apply certain restrictions which
might not properly apply to natural channels.
The position of the Suez Canal as an international water-
way gives some indication of existing practice.
It is to be noted, (1) that the canal is an artificial waterway ;
(2) that M. de Lesseps, a foreigner, in 1854, under authorization
The Suez ®^ ^^^ Viceroy, undertook its construction as a
Csnsi. business venture; (3) that it is wholly within
the territory of Egypt.
The case is then one of an artificial waterway, constructed
by private capital, wholly within the territory of a state.
The negotiations continued from 1869, when the canal was
opened, to 1888, when a convention was signed by the Six Great
Powers, and by the Netherlands, Spain, and Turkey, by which
the status of the canal was defined. By Article I of the Con-
ventional Act, " The Suez Maritime Canal shall always be free
and open, in the time of war as in the time of peace, to every
vessel of conunerce or of war, without distinction of flag.
JUraSDICTION 121
" Consequently, the High Contracting Parties agree not in
any way to interfere with the free use of the Canal, in time of
war as in time of peace.
" The Canal shall never be subjected to the exercise of the
right of blockade."
By Article IV, the canal is not to become the base of hostile
action. The marine league is to be respected in the action
of foreign vessels. The twenty-four hour period is to elapse
between the sailing of hostile vessels.
By Article VII, the powers may keep two war vessels in
the "ports of access of Port Said and Suez," though "this
right shall not be exercised by belligerents."
By Article X, the territorial jurisdiction for general adminis-
trative purposes is affirmed, and likewise for sanitary measures
in Article XV.*
This Suez Canal of such great international importance was
by this convention within the jurisdiction of Egypt, but the
powers have assxuned to provide that this jurisdiction shall
not be exercised in such a way as to prevent innocent passage.
The Hay-Pauncefote Treaty of 1901, setting aside the
Clayton-Bulwer Treaty of 1850, leaves to the United States
ThoPuMina ^g^ jurisdiction over such canal as it may de-
CaiuL termine to construct across the Central American
Isthmus, and it is also provided that the canal shall be neu-
tralized substantially as in the manner set forth in the Con-
vention in regard to the Suez Canal.'
The canal at Corinth, shortening somewhat the route to
the Black Sea and Asia Minor, was opened in 1893. This
Cwisdiaiid canal does not, like the Suez, greatly change
Kid Canals. the current of the world's intercourse, and is
entirely within the jurisdiction of Greece.
1 Pari. PapeiB, 1889, Commercial. No. 2 ; Holland, '* Studies in International
Law," p. 270.
t For documents, see Diplomatic History of the Panama Canal, Sen. Doc.
No. 474, 63d Cong. 2d Session.
122 INTERNATIONAL LAW
Similarly the canal at Kiel, opened in 1896, was wholly within
the jurisdiction of Germany, but by the Treaty of Versailles,
1919, it was to be open on terms of equality to all vessels.^
64. The Three-mae Limit
(a) One of the most generally recognized rules of inter-
national law is that the jurisdiction of a state extends upon the
statem t d ^P^^ ^* ^ * distance of three miles from the
origin of the low-water mark.' In the words of the Act of
*""** Parliament passed in consequence of the case of
the Francofda? 1878 (41 and 42 Victoria, c. 73), " The terri-
torial waters of Her Majesty's dominions, in reference to the
sea, means such part of the sea adjacent to the coast of the
United Kingdom, or the coast of some other part of Her
Majesty's dominions, as is deemed by international law to
be within the territorial sovereignty of Her Majesty ; and for
the purpose of any offense declared by this Act to be within
the juriisdiction of the Admiral, any part of the open sea within
one marine league of the coast measured from low-water mark
shall be deemed to be open sea within the territorial waters
of Her Majesty's dominions." The three-mile limit became
more and more generally recognized after the publication of
Bynkershoek's " De Dominio Maris," 1702, in which he enun-
ciates the principle that the territorial jurisdiction ends where the
effective force of arms ends, which being approximately three
miles from shore at that time, has since been usually accepted.
Italy by decree of August 6, 1914, claimed a six-mile limit, while
Norway withdrew its ancient claim to a four-mile limit on
June 18, 1918.
(6) For special purposes a wider limit of jurisdiction is
maintained and sometimes accepted by courtesy, though it is
doubtful whether any state would attempt to hold its position
» Arts. 380-380. * Henhey, 216.
* See Eegma o. Keyn. 2 L. B. (Exoh. Div.), 63.
JURISDICTION 123
against a protest from another state. The claims are based on
the jurisdiction over fisheries, the enforcement of revenue ktwSy
A wider limit ^^ maintenance of neutrality, etc.^ Such claims
•oimaitimM ^ the former English claims to the " IQng's
•pedid Chambers/' announced in 1604 to be bounded by
v^'^o*^*- a "straight line drawn from one point to an-
other about the realm of England/' as from the Lizard to
Land's End, would not now receive serious support; and
since the rejection of the claims of the United States by the
Bering Sea Tribunal, it can be safely stated that the expansion
of territorial jurisdiction upon the open sea will only come
through the consensus of states. The desirability of some new
regulations upon marine jurisdiction was well shown in the dis-
cussions of the Institute of International Law at its meeting in
Paris in 1894 and later.*
Within the three-mile limit the jurisdiction extends to com-
mercial regulations, rules for pilotage and anchorage, sanitary
and quarantine regulations, landing of cables, control of fisheries,
revenue, general police, and in time of war to the enforcement of
neutrality.
66. Jurisdiction over Fisheries
The existence of fisheries has given rise to some special
claims to extension of maritime jurisdiction.
(a) As a general rule, the right of fishing on the high sea
belongs to all states alike, but each must respect the rights
of others. In order that these rights might be
hi^*Mi7richt defined, it has in many cases been necesssary
bdonsiiigto to resort to conventions. One of the excellent
examples of this may be seen in the convention
in regard to the North Sea Fisheries, May 6, 1882, to which
* As between the United States and Mexico, their jurisdiction on the bound-
ary line in the Gulf of Mexico extends three leagues.
> Annoaire XIU. 329 ; ibid,. XXVI, 403.
124 INTERNATIONAL LAW
Belgium, Denmark, France, Germany, Great Britain, and Hol-
land were parties. The cruisers of any of these states might
present the case of the fishing vessel violating the regulations
of the convention in the country to which the fishing vessel
belonged, the trial and penalty belonging to the courts of that
country.
(6) Special privileges granted by one state to another, or
secured by custom, may be servitudes in the sense of limiting
Special iirivi- the right to exercise jurisdiction while not " dero-
logoB in fishing, gating from sovereignty,'* and must depend, as
in the case of the Canadian fisheries, upon the interpretation
of the treaties by which they were granted.
By the treaty of 1783, the United States has the right of fishing
on certain parts of the coast of the British Dominion in North
America. Great Britain claimed that these rights were annulled
by the Treaty of Ghent, 1814, which put an end to the War of
1812, as that treaty was silent upon the subject. The United
States declared, " they were not annulled by the war as they
were enjoyed by the colonists before the separation from Eng-
land in 1783, and so existed perpetually independent of treaty."
This claim was adjusted in the Treaty of 1818, by which in-
habitants of the United States have liberty to fish on parts
Cftse of the ^^ ^® coast of Newfoundland and Labrador, to
Cftnadian dry and cure fish in certain inlets, and to enter
other inlets for shelter, repairs, and supplies. Dis-
putes arising under this treaty were settled by the Treaty of
1854, which gave to Canadian fishermen certain rights of fishing
along the eastern coast of the United States north of the thirty-
sixth parallel of latitude.
The United States took action to terminate this treaty in
accord with its terms in 1866. The conditions of the Treaty
of 1818 revived.
The Treaty of Washington, 1871, practically reestablishes the
provisions of the Treaty of 1854, specifying that the difference
JURISDICTION 125
in value between the rights granted by each state to the other
should be determined by a commission. This commission
awarded $5,500,000 to Great Britain in 1877.^ In accoid with
the provisions of the Treaty of 1871, it was terminated by the
United States in 1886, the provisions of the Treaty of 1818 again
coming in force. A law of March 3, 1897,^ provided that the
President may in certain contingencies deny vessels of the British
Dominions of North America entry into the waters of the United
States, and may also prohibit the importation of fish and other
goods.'
These fisheries continued to be the subject of international
negotiations, and modi vivendi were from time to time agreed
upon between the United States and Great Britain, till at
length under the provisions of the Arbitration Treaty of April
4, 1908, between the two states, the dispute was referred to
the Hague tribunal, and an award was made September 7,
1910,* by which the respective rights were more clearly defined
through action upon seven specific questions.
(c) Another question which had given rise to much dis-
cussion was that of the seal-fishing in Bering Sea.
In 1821 Russia claimed that the Pacific north
qoM^nof of latitude 51° was mare clausum. The United
Mfli-iishiiic in States and Great Britain denied this claim. By
conventions, 1824 and 1825, Russia conceded to
these nations rights of navigation, fishing, etc. After the
United States in 1867 acquired Russian America, seal-fishing
assumed importance. As the Canadian fishermen were not
restrained by the laws binding the United States fishermen,
it was feared that the seal would become extinct. In 1886,
three Canadian schooners were by decree of the district court
at Sitka confiscated for the violation of the laws of the United
States in regard to seal-fishing, the judge charging the jury
> See CuBhings " Treaty of Waahington." > 24 U. S. Sts. at Large. 475.
* 1 Moore, 767-874. * Wilson, '* Hague Arbitration Cases," 134.
126 INTERNATIONAL LAW
that the territorial waters of Alaska embraced the area bounded
by the limits named in the treaty of cession to the United States
of 1867 as those " within which the territories and dominion
conveyed are contained." This act with others of similar
character led to a formal protest by Great Britain.
The questions in dispute were referred to a court of arbi-
tration which decided against the claims of the United States,
denying that the sea referred to as the Bering Sea was mare
clausum, and therefore denying that the United States acquired
jurisdiction by prescriptive right from Russia in 1867. It was
also decided that the United States had no right of property in
the seals in the open sea, but that the destruction of these
animals was contrary to the laws of nature. The United States
and Great Britain entered into an agreement, in 1891, in regard
to the protection and taking of the seals by their subjects.
Other nations Were also to be asked to become parties to an
agreement.* A Convention Protecting Fur Seals was signed
by the United States, Great Britain, Japan, and Russia, July
7, 1911.
It may be regarded as finally established that fishing in the
open sea is free to all, though of course states may by conven-
tions establish regulations which shall be binding upon their
subjects.
66. Jurisdiction over Vessels
At the present time every vessel must be imder the juris-
diction of some state.
(a) Vessels are divided into two general classes :
(1) PMic vessels, which include ships of
private ^88eU. ^^^f government vessels engaged in public serv-
ice, and vessels employed in the service of the
state and in command of government officers.
1 Proceedings Fur Seal Arbitration, 1893 ; also 8 U. S. Comp. Sta. ftft 8838
etaeq.
JURISDICTION 127
(2) Private vessels, owned and operated by individuals and
under regulations varying in different states.
(6) The nationality of a public vessel is determined by its
flag. In an extreme case the word of the commander is held
to be sufficient proof.
^^^n^ ABtn- I"^ case of a private vessel the flag is customary
miiMdbyito evidence, but in case of doubt the vessel must
show to proper authorities the papers which
certify its nationality.
(c) The general exercise of jurisdiction over vessels pre-
sents four different aspects as follows :
G«fieraiez»ciM (1) Upon the high seas and within its own
of jwiBdictton. waters the jurisdiction of a state over its public
and private vessels is exclusive for all cases.
(2) Over public vessels in foreign waters, the jurisdiction of
the state to which a public vessel belongs is exclusive for all
matters of internal economy. The vessels are subject to port
regulations in matters of anchorage, public safety, etc. As
Dana says in his note to Wheaton : *' It may be considered as
established law, now, that the public vessels of a foreign state
coming within the jurisdiction of a friendly state, are exempt
from all forms of process in private suits.'' ^ In general prac-
tice the waters of all states are open to the vessels of war of all
other states with which they are at peace. This is a matter
of courtesy and not of right, and is in fact sometimes denied,
as by the provision of the Treaty of Berlin, 1878 : " The port
of Antivari and all the waters of Montenegro shall remain closed
to the ships of war of all nations." ^ Various regulations may
require, without offense, notice of arrival, probable duration of
stay, rank of commander, etc., and in time of war special regu-
lations may be established.
The boats, rafts, etc., attached to a vessel of war and while
engaged in the public service are regarded as a part of the ship.
^ Note 63. § 105. * IV Hertalet, 2783.
128 INTERNATIONAL LAW
While there is some difference of opinion a3 to the immu-
nities of the persons belonging to a ship of war in a foreign
Sztentof harbor, a generally admitted rule seems to be
immunitiei. ^g^;^ while the persons of a ship of war are
engaged in any public service that is not prohibited by
the local authorities, such persons are exempt from local
jurisdiction. The ship's crew would not be arrested and
detained by local authorities for minor breaches of local regu-
lations, though they might be sent on board their vessel with
statement of reasons for such action. If the action of the crew
constitutes a violation of the law of the country to which they
belong, the conmiander of the ship may punish them, and report
his action to the local authorities. In case of crimes of serious
nature the conmiander may turn the offenders over to the local
authorities, but must assure them a fair trial. The commander
of a vessel is, of course, always responsible to his home govern-
ment, and his action may become the subject of diplomatic
negotiations.
The question of right of asylum on board a ship of war has
been much discussed. First, most civilized states now afford
-H. . V* ^ asylum on board their ships of war to those who,
'X'|I9 fight of
asylum on board in the less civilized regions, flee from slavery.^
a ship o war. Second, in cases of revolution ships of war some-
times afford refuge to members of the defeated party, though
the ship of war may not be used as a safe point from which
further hostilities may be undertaken. Third, a commander
may afford asylum to political refugees under circumstances
which he thinks advisable. Fourth, in cases where asylum is
granted to offenders whether political, or (in case of treaty
right) criminal, if the request of the local authorities for the
release of the criminal is refused by the commander of the ship,
there is no recourse except to the diplomatic channels through
extradition.
1 Art. 28, Gen. Act Bruasels Conference, July 2, 1890.
JURISDICTION 129
The immunities granted to vessels of war are also generally
conceded to other vessels strictly upon public service, e.g.
Tmii%««w^ carrying an ambassador to his post. The largest
of TMsds in possible exemption is given to a vessel conveying
the sovereign of a state. Vessels transporting
military forces in command of regularly commissioned govern-
ment officers are usually granted immunities accorded to men-
of-war.
(3) Over private vessels in foreign waters the amount of
w __, jurisdiction claimed by different states varies.
juriMiictioii The principle which is meeting with growing
J^^^^ favor, as shown by practice and by treaty stipu-
in foreigii lation, was stated by Chief Justice Waite in 1886
as follows : " Disorders which disturb only the
peace of the ship, or those on board, are to be dealt with ex-
clusively by the sovereignty of the home of the ship ; but those
which disturb the public peace may be suppressed, and, if need
be, the offenders punished by the proper authorities of the local
jurisdiction." ^
The position of Frajice is, briefly, to assume no jurisdiction
over foreign merchantmen within her ports save in cases that
affect some person other than those belonging to the ship, in
which cases the local authorities are expressly called upon to
interfere, or, when the order of the port is disturbed.*
The British Territorial Waters Jurisdiction Act of August
28, 1878, gives jurisdiction to the authorities over all acts com-
mitted within the marine league, even though the ships are not
anchored but merely passing through territorial waters.* This
is an extreme position, and not supported by the best authorities
even in Great Britain.^
The position of France, as stated above, is open to little
> Wildenhus's Case. 120 U. S. 1, 18.
* Bonfils, "De la competence des tribunauz franoais," § 326.
s Statutes 41 and 42. Vict., p. 570.
« Holland, " Studies/* p. 156 ; Perels. p. 112.
130 INTERNATIONAL LAW
objection either in practice or theory, and is more and more
becoming a form of treaty agreement, and may be considered
generally approved. Where these principles are adopted the
jurisdiction of breaches of order within the ship may be referred
to the constd who has jurisdiction, and if necessary he may call
upon the local officers to assist him in enforcing his authority.
(4) In recent years special exemption from jurisdiction has
been accorded to certain semirpMio vessels engaged particularly
in the postal and scientific service. Vessels in
emption*d[ the postal service have by treaties been accorded
■emi-pttbUc special freedom from customs and port regulations ;
and by the Convention between Great Britain
and France, August 30, 1890 (Art. 9), it is agreed that in time
of war such vessels shall be free from molestation till one of the
states shall give formal notice that communication is at an end.
During the World War inununity to vessels in the postal service
was not uniformly accorded.
57. Aerial Jurisdiction
With the development of radio conmiunication and with the
use of the atmosphere as a highway for aircraft, balloons, etc.,
there have arisen questions in regard to aerial jurisdiction. It
is generally recognized that the state possessing territorial,
maritime, and fluvial jurisdiction has jurisdiction in the atmos-
phere above. States began to regulate the use of the wireless
telegraph by the Convention of Berlin, November 3, 1906.
This Convention was superseded by that of Lqndon, July 5,
1912.
In a preliminary statement, the Institute of International
Law in 1906 declared that " The air is free. States have over
it, in time of peace and in time of war, only the rights necessary
for preservation."
The idea expressed in " freedom of the air " gradually gave
way to the idea that jurisdiction in the air appertained to the
JURISDICTION 131
subjacent state.^ The Convention relating to international
air navigation drawn by a sub-committee of the Peace Confer-
ence, 1919, states : " Article I. The contracting States recog-
nize that every State has complete and exclusive sovereignty
in the air space above its territory and territorial waters."
The manner of the exercise of jurisdiction when not determined
by conventional agreements was left for each state to decide.
As a state might prohibit photographing of fortifications from
ships upon the water, so it might prohibit similar acts from air-
craft. During the World War both neutrals and belligerents
assumed exclusive jurisdiction over the superjacent air.
B8. Jurisdiction over Persons — Nationality
Under the discussion of jurisdiction of the state over persons
comes the question of nationality.^ Nationality involves the
reciprocal relations of allegiance and protection on the part of
the person and state. It corresponds to citizenship in the broad
sense of that term. In general a state may exercise jurisdiction
over its own subjects or citizens as it will, and the relations of a
state to its citizens are matters of municipal law only.
Persons who owe allegiance to a state and are entitled to
its protection are in some recent treaties called nationals of
that state. The term national implies merely that the person
so designated has this international status, but does not imply
anything in regard to the degree of political or other privileges
to which the person is entitled, as in the case of Porto Ricans
under the Act of April 12, 1900.
A state exercises jurisdiction over all persons within its
limits except certain officers of other states by exterritoriality
entitled to exemption from local jurisdiction. In some of
the Eastern states citizens of Western states are by treaty ex-
1 HueltiDe. ** The Law of the Air" ; Speight, " Aircraft in Peace," "Aircrnft
in War"; Wilaon. '* Aerial Jurisdiction," 5 Am. Pol. Sci. Rev. p, 171,
* 1 ZebaUos, "La Nationality/' p. 139.
132 INTERNATIONAL LAW
empt from certain local laws. This last exemption may prop-
erly be said to be by local law, as a treaty becomes a part of the
state law for the subjects upon which it touches.
The jurisdiction over a person also varies with the status of
the person as regards his relations to other states, as in case of
an ambassador in transit to his post in a third state. The con-
flict of laws in regard to nationality forms an important part
of prifxxte international law.
59. Jurisdiction over Natural-bom Subjects
Children born within a state of which the parents are citizens
are natural-born subjects of that state. Such persons are fuUy
under the local jurisdiction.
Foundlings, because of the uncertainty of parentage, are
considered subjects of the state in which they are found.
Illegitimate children take the nationality of the mother, pro-
vided they are born in the state of which the mother is subject
and sometimes even when born abroad.^
The great bulk of the population of all states, except those
most recently founded, is natural-born, and therefore fully
under local jurisdiction.
60. Jurisdiction over Foreign-bom Subjects
It is the general principle that each state determines citi-
zenship by its own laws. The status of persons born abroad
may become very uncertain by virtue of the conflict of laws
of the state of which one or both the parents are citizens and
of the state in which the child is born.
These laws in regard to children born to parents while so-
journing in foreign countries may be classified as follows: —
(a) The child born in the foreign country is a subject of
the state of which his parents are citizens. That the child
I Portuguese Civil Code, Art. 18, Sec. 3.
JURISDICTION 133
iDherits the nationality of his father is a common maxim known
as jus sanguinis. The United States law says : " All children
TiM niia of heretofore bom or hereafter bom out of the limits
jus nnsulnit ^^^^ jurisdiction of the United States, whose
fathers were or may be at the time of their birth citizens
thereof, are declared to be citizens of the United States ; but
the rights of citizenship shall not descend to children whose
fathers never resided in the United States." * The jiuf sanguinis
was followed by Austria,^ Germany,* Hungary,* Sweden,*
Switzerland,* and by some of the smaller European states.
(6) Certain states follow the rule of jus soli, maintaining
that the place of birth determines the nationality. Great
Thm role of Britain, by Article 4 of the Act of May 12, 1870,
i^ **- adopts this principle. By the Fourteenth Amend-
ment of the Constitution of the United States, "All persons
bom or naturalized in the United States and subject to the
jurisdiction thereof, are citizens of the United States and
of the state wherein they reside." The laws of the United
States have given rise to many questions.^ * Portugal and most
of the South American states follow the ju>s solL
(c) Other states follow sometimes the pis sanguinis, some-
times jus soli, and sometimes modifications of these laws. The
VariAtkmi ^^^^ ^^ Belgium and Spain regard the child of an
to tow*. alien as an alien, though on attaining majority
the child may choose the citizenship of the country of his
birth. The French laws of June 26-28, 1889, and July 22,
1893, consider as subjects the children born abroad to French
citizens, also the children of foreigners born in France, unless
these children within one year after attaining majority elect the
nationality of their parents. Most states allow the descendants
> U. S. Rev. St8., § 1993 ; 4 U. S. Comp. Sts. §§ 3947 et aeq.
* Civil Code, Art. 28. ' Law of June 1, 1870 and reviaionn.
* Dec. 24, 1879. * Feb. 27, 1858 and revisions.
* July 3, 1876. ' 3 Moore, § 425.
134 INTERNATIONAL LAW
born to foreigners sojourning within their limits to elect their al-
legiance on attaining majority. Switzerland, however, strongly
maintains the jiuf sanguinis, without according any choice to
the descendants born to foreigners within her limits, or to her
own subjects born abroad except by formal renunciation of
citizenship. Thus the child of a citizen of Switzerland bom in
France would be by French law a citizen of France, and by
Swiss law a citizen of Switzerland.
By the law of Germany, 1870, a citizen of Grermany sojourning
more than ten years abroad without registration at his con-
stdate loses his German citizenship, without necessarily ac-
quiring the citizenship of the country of his sojourn, thereby
becoming heimaUos, or a " man without a country." But the
Imperial and State Citizenship Law of July 22, 1913, made
provision for naturalization.^ This law provided for a possible
dual citizenship. " Citizenship is not lost by one who before
acquiring foreign citizenship has secured on application the
written consent of the competent authorities of his home state
to retain his citizenship." (Section 25.)
At the present time the laws in regard to descendants born
to parents sojourning in a foreign state show the widest diversity
and give rise to unfortunate complications.'
61. Jurisdiction by Virtue of Acquired Nationality
The jurisdiction of a state extends to those who voluntarily
acquire its citizenship.^
(a) A woman in most states by marriage acquires the nation-
aUty of her husband. In some of the South American states
the husband acquires the citizenship of his wife.
By the law of Belgium, August 6, 1881, and by
the law of France, June 26, 1889, it was made easier for
» Ex parte Weber, (1915) 31 L. T. Rep. 602.
« Pradier-Fod6r6, 1648-1653 ; Van Dyne, ** Citiaenship of the Uziited States."
* Van Dyne, " Law of Naturalization of the United States."
JURISDICTION 135
«■
foreigners who had married women natives of those states
to acquire Belgian or French nationality respectively. The
United States law holds that a woman " who might herself
be lawfully naturalized ** marrying a citizen of the United States
acquires in this manner his nationality. An American woman
on marrying a foreigner takes his nationality, but on termination
of marital relations, she may regain American nationality by
registering within one year before a United States consul or
by residence within the United States.^
(b) A state may acquire jurisdiction over persons by nat-
uralization, which is an act of sovereignty by which a for-
eigner is admitted to citizenship in another state. The method
of natiuralization is in accord with local law and varies greatly
in different states.' The law of the United States prescribes
that Congress has power "to establish an uniform rule of
naturalization." * The foreigner being a free white or African
By nAtnnU- desiring naturalization in the United States must
**^***^ declare on oath before a court "two years, at
least, prior to his admission, and after he has reached the
age of eighteen years, " his intent to become a citizen.
After completion of five years of residence and within seven
years of the first declaration, he may obtain citizenship by taking
an oath of allegiance to the United States and of renunciation
of his former country. Military or naval service, service in
the merchant marine, or certain other prior conditions may
facilitate naturalization or shorten its period.^
(c) A state may acquire jurisdiction over persons by annex-
ation of the territory upon which they reside. The territory
may be acquired by cession, exchange, purchase, conquest, etc.
The conditions of the transfer of allegiance from the state
> U. S. Comp. Sta. |§ 3948. 3960.
• PRulier-Fod6rt, 1656 ff. ; U. S. Sts. 1905-6, Pt. I, 596. Act June 29. 1906 ;
1 A. J. I. L. Doc., p. 31.
'Constitution of U. 8.. Art. I. § 8; U. S. Comp. Stat. 1918. § 4358.
« 5 U. S. Comp. Stat. §§ 4352, 4365.
136 INTERNATIONAL LAW
formerly possessing the territory is usually fixed by the treaty.
This transfer is known as collective naturalization.
By umentioii Ordinarily a right to choose the allegiance to
of territory. either state is left to the inhabitants of an an-
nexed territory. Removal from the new jurisdiction is usually
required if the inhabitant does not choose to change his alle-
giance. If the inhabitant does not take any action, it is held
that he thereby tacitly transfers his allegiance unless there are
special treaty provisions.* In default of declaration to the con-
trary within one year acceptance of citizenship in the United
States was presumed by inhabitants of the Danish West Indies,
purchased in 1917.
(d) The effect of naturalization, whatever the method, is
to make the person a citizen of the state into which he
The effect of is admitted, and over him that state has juris-
nmturaiiutioii. diction in all places outside the jurisdiction of
the state whose allegiance he has forsworn.
There may be conflict in the laws determining the relations
to his native state of a person who has renounced his alle-
giance to one state by naturalization in another state. The
general law is, that he becomes entitled to all the privileges
of a subject of the state of his new allegiance, except that when
he is within the state of his former allegiance he becomes liable
for the performance of any obligation which he may have in-
curred prior to his naturalization.*
A state may determine what conditions must be fulfilled in
order to constitute a valid severance of allegiance. Laws are
diverse upon this subject. Many states have maintained, and
some still maintain, that allegiance is inalienable.' England
formally maintained this principle till 1870, and her attempts
> 2 Pradier-Fod6r6, 863 ; 3 ibid.. 1671 ff.
> 3 Moore, § 401 ; See Convention of 1906 establishing status of naturaliied
citizens.
* HaU. p. 239.
JURISDICTION 137
to enforce the principle brought on the War of 1812 with the
United States.
In certain countries, as in the United States and Switzerland,
minor children are held to follow the allegiance of their father
in case of naturalization. The French law claims that the
minor child's nationality is that of his birthplace. The subject
has been determined in some instances by treaty stipulation,
yet must be considered, like many questions of naturalization,
as unsettled.
Many states distinguish in law and more in practice between
that naturalization which carries with it protection of the state
and allegiance of the subject {naturaliscUion ordinaire) and the
naturalization which carries full political privileges (grande
naturalisation).
(e) The fact that a person has taken the preliminary steps
toward acquiring the nationality of a foreign state, by making
Licooiplete ^ declaration of his intention or otherwise, may
natnraiizatioiL give the state to which the person has assumed
an inchoate allegiance the right of protection of the declarant
against third states,^ though not necessarily against the
native state of the declarant.^
The United States, in the case of Martin Koszta in 1853,
took an extreme position in its claim of protection of one who
had only declared his intention to become a citizen.'
By an act of March 3, 1863, the United States declared
that those who had taken the preliminary oath of intention
to become citizens were liable to military service,
liabiiitjto' Upon protest by foreign nations against this
act of Congress, the President, by proclamation,
announced that, as it had been claimed that
" such persons, under treaties or the law of nations, retain
a right to renounce that purpose, and to forego the privileges
of citizenship and residence within the United States, under the
1 3 Mooie, i 387. > 3 Moore, § 401. > 3 Moore, §§ 490, 491.
138 INTERNATIONAL LAW
obligations imposed by the aforesaid act of Congress/' ^ to avoid
all misapprehension, the plea of alienage would be accepted for
sixty-five days, during which time such persons as had only
declared their intention to become citizens might depart.
In the Acts of 1918 the United States provided that neutrals
who had declared their intention to become citizens might be
relieved of obligation to military service by withdrawing the
declaration of intention and they would thereupon be debarred
from becoming citizens of the United States.*
The municipal laws of some of the local states of the United
States admit to all political privileges of the local state those
who have taken the first steps toward naturali-
Municipal lawB zation. It is generally conceded that such as
zation. have exercised the privileges of full citizens can
properly be held to the obligations of full citi-
zens, as was implied in 1863 and 1918.
As is shown in the international convention of 1906, the in-
consistencies in regard to jurisdiction over those naturalized
are gradually being removed by treaty provisions which deter-
mine the position of such persons.'
62. Jurisdiction over
Citizens of one state, when sojourning in a foreign state, have
a dual relationship by which they may claim certain privileges,
both from their native state and from the foreign state.
(a) The native state naturally has jurisdiction of a qualified
sort over its subjects even when they are in a foreign state.
(1) The right to make emigration laws may lead to lawful
restrictions on the movements of nationals. A state may
banish its subjects. No other state is obliged to receive
them, however.
1 6 Messages and Papers of Presidents, 168.
I Acts of Congress, July 9 and August 31, 1918.
•Convention United States and Portugal, May 7, 1908, Art 2.
JURISDICTION 139
(2) A state may recall iis citizens for special reasons, as
in the case of Greece in 1897, when Greek citizens were re-
called for military service, and as was frequently
dictfam over done by many states from 1914.
^^^ (3) There is much difference of opinion upon
the question of criminai jurisdiction of the native
state over its subjects who have committed crimes in a foreign
state. In general American and English authorities agree that
criminal law is territorial. Some of the continental authorities
take the view that a citizen on his return may be punished for
crimes committed in a foreign state. The English law takes this
position in certain crimes, as treason, bigamy, and premeditated
murder. Usually a crime committed upon a vessel in a foreign
harbor is held as within the jurisdiction of the state of the ves-
sel's registry.*
(4) A state may interfere to protect its subjects in a foreign
state, thus extending its authority in their behalf. This has
been frequently done to protect Western sojourners in Eastern
states, e.g. the demands of Germany, in 1898, for concessions
from China on account of injuries to missionaries. These de-
mands, accompanied by a naval demonstration, resulted in the
cession of Kiaochow, which remained in German control till the
World War.
(6) The jurisdiction of a state over aliens within its territory
is very extensive.
(1) The absolute right of exclusion of all
overaUeiw foreigners would hardly be maintained by any
within civilized state, though it could be deduced from
the doctrine of sovereignty. Several Asiatic
states desirous of excluding foreigners were, however, compelled
by force to grant to certain states demanding it admission for
their citizens.
(2) The right of expulsion is, however, generally maintained.
1 WUdenhus' caae. 120 U. S. 1.
140 INTERNATIONAL LAW
This right shotdd, however, be exercised most carefully, as the
fact of admission carries with it some obligation on the part of
the admitting state.
(3) The right to conditional admission is generally admitted,
as seen in laws in regard to immigration.
(4) The foreign state may impose such restrictions upon
settlement as it sees fit.
(5) A foreign state may levy such taxes upon the person and
goods of aliens as are in accord with state law.
(6) Aliens are subject to the local sanitary and police juris^
diction,
(7) The foreign state has criminal jurisdiction over aliens
for crimes conunitted within territorial limits, and many states
maintain, also, for such crimes as plotting against the state,
counterfeiting state money, or crimes directly imperiling the
state's well-being even when committed outside of state limits.
(8) The state may require aliens to render service such as
is necessary to maintain public order, even military service, to
ward off immediate and sudden danger, e.g. as an attack by
savages, a mob, etc., but
(9) A state cannot compel aliens to enter its military service
for the securing of political ends, or for the general ends of war.
(10) In nearly all states freedom of commerce is now con-
ceded, the state giving to native and foreigner similar privileges.
(11) The holding and bequeathing of property of whatever
sort is subject to local law, as is also
(12) The freedom of speech and of worship.
All these laws are subject to the exemptions in favor of
Passport sovereigns, diplomatic agents, etc.
a means for (^) Ordinarily the identity of an alien is es-
the identity tablishcd by a passport. This may also secure
ofanaUen. f^^ j^j^^^ ^ measure of care in a foreign state.
Opposite is the ordinary form of passport issued by the United
States before the outbreak of war in 1914.
JURISDICTION 141
Good only for two yean from date.
UNITED STATES OF AMERICA
Department of State
To aU to whom these presents shaU come^ Greeting:
I, the undersigned, Secretary of State of the United States of America,
hereby request all whom it may
DESCRIPTION concern to permit
Age Years
Stature. . . . Feet. . . Inches. . , Eng ,
Forehead a Citizen of the United States,
Eyes safely
Nose and freely to pass, and in case of
Mouth need to give all lawful Aid
Chin and Protection.
Hair
Complexion Given under my hand and the
Face Seal of the Department of State,
at the City of. Washington, the
(seal) day of in the year
19. ., and of the Independence of
(Signature of the Bearer) the United States the one hun-
dred and
No.
63. Exemptions from Jurisdiction — General
As a general principle, the sovereignty of a state within its
boundaries is complete and exclusive. For various reasons
there has grown up the custom of granting immunity from
local jurisdiction to certain persons generally representing the
public authority of a friendly state. This immunity may ex-
tend to those persons and things under their control.
This immunity has been called extraterritoriality. The per-
sons and things thus exempt from local jurisdiction are re-
garded as carrying with them the territorial status of their
native state, or as being for purposes of jurisdiction within
142 INTERNATIONAL LAW
their own state territory, and beyond that of the state in which
they are geographically. Wherever they may go they carry
Extraterritorial- with them the territory and jurisdiction of their
**y' home state. Doubtless this doctrine of extra-
territoriality in the extreme form may be carried too far, as many
late writers contend, and some have desired another term, as
immunity from jurisdiction, as more exact and correct.^ Such a
term would have the merit of directing attention to the nature
of the relation which the persons concerned sustain to the
state. Hall sums up the case by saying, " If exterritoriality
is taken, not merely as a rough way of describing the effect of
certain inununities, but as a principle of law, it becomes, or
at any rate is ready to become, an independent source of legal
rule, displacing the principle of the exclusiveness of territorial
sovereignty within the range of its possible operation in all
cases in which practice is unsettled or contested."* Extra-
territoriality should be viewed as based on the immunities con-
ceded to public persons, rather than as the source of these im-
munities.
64. Exemption of Sovereigns
Sovereigns sojourning in their official capacity in foreign
countries are exempt from local jurisdiction. This principle is
based, not merely upon courtesy, but also upon convenience
and necessity. The sovereign represents the state, and there-
fore cannot be subjected to the jurisdiction of another state
without waiving the sovereignty, and in so far depriving the
state of one of its essential attributes. Nor can the visiting
sovereign exercise any authority which would infringe the
sovereign powers of the state in which he is. The visiting
sovereign can only claim immunity for such action as is in accord
with the necessities of his convenient sojourn. He, his retinue,
and effects, are exempt from civil and criminal jurisdiction. He
1 Bonfils, No. 337. > HaU, p. 177.
JURISDICTION 143
is free from taxes, duties, police and administrative regulations.
In the case of Vavasseur v. Krupp, 1878, it was decided that
infringement of the patent law did not constitute a ground for
suit against a sovereign. In this case, Vavasseur brought action
against Ejrupp for infringement of patent on shells in custody
of the agents of the Mikado of Japan. The action resulted in
an injunction preventing removal of the shells to the Mikado's
ships, but on application of the Mikado to remove the shells as
his property, the court held that, even if the property in ques-
tion infringed a patent, the Mikado could not be sued and his
property could not be held.* The principle that the sovereign
is free from suit has frequently been decided by the courts of
various countries. A sovereign sojourning in a foreign state
cannot, however, set up his courts and execute judgment;
such functions belong to his territorial courts. Criminals in
his retinue must be sent home for trial. While the sover-
eign's h6tel or place of residence while abroad is exempt from
local jurisdiction, the sovereign is not justified in allowing
the hStel to become an asylum for others than members of his
retinue. On demand he must give up such refugees. In
case the sovereign does not observe this principle or conunits
acts liable to endanger the peace of the foreign state, the author-
ities may invite him to depart, or if necessary expel him by
force, in which case the measures taken should cause the least
possible inconvenience to the sovereign.
The sovereign may, in his private capacity, hold property
and become party to a suit like any citizen.^ A sovereign may
travel incognito, and is then entitled only to the recognition
accorded to the rank which he assumes. He can, however,
assert his sovereign capacity and obtain its inununities at any
time should he deem it proper.
1 L. R. 0 Ch. Div. 361.
* StrouBberg v. Costa Rica, (18S1) L. T. 109 ; Bynkenhoek, " De Foro
Lecatorom," Ch. XVI.
144 INTERNATIONAL LAW
66. Exemptions of State Officers
(a) Diplomatic agents, or those commissioned to transact
the poUtical a£Fairs of the state abroad, are conceded a wide
Wide immiinitv ^^^^^^^^^^Y ^^^ ^^^^^ jurisdiction. As repre-
aiiowed dipio- senting the political will of their state, diplo-
ma cagen . matic agents have inmiunities similar to those
conceded to the sovereign, though by virtue of the fact that
the sending of diplomatic agents has long been a common prac-
tice, their immunities are quite well defined. These immunities
will be considered more in detail under the subject of Inter-
national Intercourse, but in general a diplomatic agent is exempt
from (1) criminal jurisdiction, (2) civil jurisdiction, (3) local
police and administrative regulations, (4) taxes and duties,
(5) jury and witness duty, (6) regulations in regard to religious
and social action, (7) all exercise of authority by the local state
within his official residence or hStel, (8) and is exempt from the
exercise of similar authority over his household, official and
unofficial.^
(6) The exemptions granted to consuls vary in different
states and under different circumstances. In
Exemptions
granted to general consuls are entitled to such exemptions
*^" as will enable them to perform their functions
effectively.'
(c) Any foreign army within the territorial limits of a given
state, by permission of the sovereign of said state, is free from
A foreign army ^^^ sovereign's jurisdiction. Chief Justice Mar-
entering a state shall, in 1812, gave as his opinion : " In such case,
by permission. .^, ^ j i x- ....
free from Without any express declaration waiving juris-
jurisdiction. diction over the army to which this right of
passage has been granted, the sovereign who should attempt
to exercise it would certainly be considered as violating his
faith. '. . . The grant of a free passage, therefore, implies
> See Sec. 78 for full discussion. * See Sec. 82 (/) for full discussbn.
JURISDICTION 145
a waiver of all jurisdiction over the troops during their
passagei and permits the foreign general to use that discipline,
and to inflict those punishments, which the government of his
army may require." * Permission, either general or special,
must be obtained in order that an army may enter a foreign
state in time of peace. The army must cause the least possible
inconvenience to the state during its sojourn.
The military attach6 of an embassy is regarded as a member
of the official household of the diplomatic agent.
(cQ As a vessel of war can without inconvenience to a foreign
state pass through or remain within its maritime juris-
A Tewei of wmt diction, it is customary to accord to the vessel
inaforeicn and crew immunity from local jurisdiction and
state free frcMii
local freedom of passage unless withheld for special
^'"™***'*'^*^ reason. "Their inununity from local jurisdic-
tion has come to be more absolute than that of the official
residence of ambassadors, and probably for the reason that
they have the efficient means of resistance which an ambas-
sador has not." '
In general the exemption from local jurisdiction which a
vessel of war enjoys in a foreign state extends : (1) to acts be-
ginning and ending on board the vessel ; ' (2) to all boats, etc.,
of the vessel of war in charge of the crew of the vessel and upon
its service ; (3) to freedom from customs and all such regulations
as are not necessary for the safety of the port. It was held in
case of the United States frigate ConatitiUion, in 1879,
that she was not liable to salvage charges.^ A vessel of war
is liable to quarantine, anchorage, and to other rules which
imply no derogation of sovereignty ; (4) to all persons on board
the vessel whether members of the crew or others. This exemp-
tion should not be taken as warranting a general exercise of the
> Exchange v. M'Faddon. 7 Cr., 116, 139.
• " International Law," Naval War Col., 2d ed. p. 23.
* HaU, p. 204. * (1879) L. R. 4 P. D. 39.
146 . INTERNATIONAL LAW
>
right of asylum on board vessels of war. Asylum may be
granted as an act of hospitality to a political refugee, who should
not use the vessel as a base for political intrigue. Asylum to
conmion criminals cannot be granted without o£Fense to the
foreign state. Such criminals are usually surrendered on re-
quest of the local authorities.
A conmiander may not pursue deserters on shore or exercise
external authority.
Hall sums up the general principle as follows: "The im-
munities of a vessel of war belong to her as a complete instru-
ment, made up of vessel and crew, and intended to be used
by the state for specific purposes ; the elements of which she
is composed are not capable of separate use for those purposes ;
they consequently are not exempted from the local jurisdic-
tion." '
In case of abuse of exemptions the state in whose waters
the foreign ship of war is, can request it to depart ; and if its
request is not complied with, can use force, though the cus-
tomary method is to resort to diplomatic channeb.
66. Special Exemptions
(a) In certain Oriental states, the subjects of Western states
are by treaty exempt from local jurisdiction. The extent of
the exemption in each case depends upon the
OrieniSaltates ^'^^^^y provisions. The basis of this exemption
special ezemp- is found in the "incompatibility of habits of
by'^eaty thought on all legal and moral questions," ' and
the consequent impossibility of obtaining what
to the Western states seems just treatment on the part of
Oriental officials. Consular courts were established to meet
the needs of foreigners within the jiuisdiction of these Eastern
i HaU, p. 207. > 2 Moore, | 262.
JURISDICTION 147
states.^ The consuls in these states were invested with special
judicial powers, though not considered by the laws of the United
States judicial officers. Each state determines the competence
of its consular courts in foreign states.
The following rules are general, though not absolute, proposi-
tions in regard to the treatment of cases involving natives of
Eastern countries and foreigners.
(1) Criminal Matters. If a native conunits a crime against
a foreigner, he is generaUy tried in the local court.
If a foreigner commits a crime against a native, he is generally
tried in the consular court of his state.
If a foreigner commits a crime against a foreigner of another
nationality, he is generally tried in the consular court of the
injured foreigner.
If both parties to the crime are of the same nationality, the
offenders are tried in the court of their own state.
If the crime is a grave one, such as murder, sentence cannot
be passed without the sanction of the home government, and
in some cases the offender is sent home for trial.
(2) Civil Mattera. In cases involving a foreigner and a
native, the trial is generally by agents of the two countries.
In cases involving subjects of the same state, their consular
court has jurisdiction.
In cases involving foreigners of different nationalities the
consular court of the defendant has jurisdiction.
In cases involving large interests, there is an appeal from
the consular to the higher courts of the state.
In the East registration of the head of the family at the con-
sulate is necessary to obtain consular protection. Local statutes
> By treaties with Japan, going into effect 1899, such courts were abolished
in that empire. 29 U. S. Sts. at Large, 848. By an Act of Congress of Juno
30. 1906, the United States established " the United States Court for China,"
which takes over for the more important cases the jurisdiction formerly exercised
by consuls and ministers. The conference on Limitation of Armament, 1922,
adopted a resolution looking to the abolition of extraterritorial courts in China.
148 INTERNATIONAL LAW
provide for the execution of treaty stipulations as to consular
jurisdiction.^
(6) In Egypt mixed courts were instituted in 1875. This
system, arranged by convention, received the assent of nearly
Mixed courts ^^U the European states and of the United States.*
in Ejorpt. fjjg majority of the judges in these courts were
foreigners, and the courts had competence over cases against
the Egyptian government, over civil and conmiercial matters
between foreigners and natives, and between foreigners of
different nationalities. The consuls had jurisdiction in other
matters. These courts have been the subject of much -discus-
sion and great difference of opinion.
67. Extradition
Extradition is the act by which one state delivers a person
accused of crime committed beyond its borders to another
state for trial and punishment.
Many of the Continental states maintain that extradition
is a duty binding upon all civilized states, on the ground that
the prevention of crime which would result from certainty of
punishment is an object to be sought by all for the general good.
Grotius, Vattel, Kent, Fiore, and many other authorities main-
tain this position. Bluntschli, FoeUx, Kliiber, G. F. de Martens,
Pufendorf, Phillimore, Wheaton, and the majority of authori-
ties make the basis of extradition the conventional agree-
ment of treaties.' The large number of extradition treaties of
the last half of the nineteenth century has made the practice
general. Occasionally a state has, in the absence of treaties,
voluntarily surrendered fugitives from justice as an act of
1 7 U. S. Comp. Sts. §§ 7633 et 8eq.
* Proclamation of March 27, 1S76 : 19 U. S. Sts. at Large, 662.
* " The surrender of fugitives from justice is a matter of conventional arrange-
ment between states, as no such obligation is imposed by the law of nations."
In the Matter of Metzger, 5 How. 176.
JURISDICTION 149
courtesy. The extradition of Tweed by Spain in 1876 was an
act of this kind.^ Such cases are not common, however, and
it is safe to derive the principles from the general practice as
seen in treaties.
(a) Persons liable to extradition vary according to treaties.
It is the general practice to surrender on demand of the state
PefBons liable ^^ which the crime is committed only those who
to extradition, are subjects of the state making the demand.
This is the general rule of the Continental states. As Great
Britain and the United States maintain the principles of
territorial penal jurisdiction; it is customary for these states
to uphold the idea of extradition even of their own subjects.*
The practice is not uniform in the relations of these states to
other states, as is shown in their treaties. The South American
and Continental European states hold that their own citizens
are not liable to extradition.
A large number of the modern writers are in favor of the
extradition of subjects in the same manner as aliens, and some
recent treaties grant no special protection to a subject who has
sought refuge in his native state after conunitting a crime
abroad.
In case the accused whose extradition is demanded is a citizen
of a third state, the practice is not uniform, though the best
authorities seem to favor the granting of the extradition only
after conmiunication with and assent of the third state, on the
ground that the state to which the subject has fled is responsible
to the third state for its treatment of him. This practice has
been followed in many European treaties.
Ordinarily, not all criminals are liable to extradition, though
treaty stipulations may cover cases usually excepted. Those
accused of political crimes have, since the early part of the
nineteenth century, been more and more generally exempt
1 4 Moore, S§ 580-688.
* Moore. " Extradition," 156; Charlton v. Kelly. 229 U. S. 447.
150 INTERNATIONAL LAW
from extradition.* During the last quarter of the nineteenth
century few treaties have been made which do not make politi-
cal criminals specifically non-extraditable. Political crimes ac-
companied by attacks upon the person of the sovereign or of
those holding political office or position are not, however, in the
above category, but are usuaUy extraditable.
(6) Even when an accused person is extradited there are
limitations as to the jurisdiction of the state to which he goes.
The trial must be for the o£Fense or offenses
tojuxit^ction enumerated in the treaty. For example, a
oyerapeiBon treaty between two states enumerates among
extradited.
extraditable crimes murder, and does not enumer-
ate larceny. A fugitive from one of the countries is accused
of both murder and larceny. The country surrendering the
criminal would not permit the trial of the criminal for any
other crime than murder, until the criminal should have had
opportunity to return to the state from which he was sur-
rendered.
(c) The conditions necessary for a claim for extradition
are: (1) that the crime shall have been committed
within the jurisdiction of the state making the demand,
(2) that there be sufficient evidence of guilt to estab-
lish a case, and (3) that the application be from the proper
authority and in the proper form.*
necessary for (d) The procedure in cases of extradition is
extra on. based on definite principles. As it is an act of
sovereignty, it must be performed by agents of the sovereign
person, who for this purpose, although generally engaged in
other functions, are executive officers.* The general rule
is that the demand for extradition shall be made through the
> In Re Castioni. 1 L. R., Q. B. [1891]. 149.
* 26 U. S. Sts. at Large, 1510; 10 U. S. Comp. Sts. H 10, 110 et seq,
* In case of Chesapeake, 1863, the consul acted as agent. Wheat. D., § 428.
note 207 ; 3 Pradier-Fod6r6, 1876.
JURISDICTION 151
ordinary diplomatic channeb. In colonies and under special
circumstances an officer of first rank may be the medium of
•^ ^_^ . the demand.
Procedure in
caseeof The person demanded may be placed under
provisional arrest pending the full proceedings
of extradition.^
Reasonable evidence of the identity of the person and of
the facts of the crime must be furnished by the state making
the demand.
In case a person is demanded by two or more states it is be-
coming customary to accede to the demand first received.
In many recent treaties there is provision that if the person
demanded is accused of a crime in the state of refuge, the de-
mand for his extradition may be refused pending his trial in the
state of refuge.
68. Servitudes
Servitudes in international law constitute a restriction upon
the exercise of the territorial jurisdiction of a state. This may
be in favor of or by agreement with one or more states. The
existence of a servitude does not necessarily imply a partition
or an alienation of sovereignty. The North Atlantic Coast
Fisheries Tribunal in 1910, while maintaining the American
right to fish and certain exemptions from British jurisdiction,
was unable to agree with the contention of the United States
that " the liberties of fisheries granted to the United States
constitute an international servitude " " involving a deroga-
tion from the sovereignty of Great Britain." ^
(a) International servitudes are : —
(1) positive, implying that a state is under obligation to
permit within its territory another state to exercise certain
powers, as by the Treaty of Berlin, 1878, Art. XXIX, " The
» 3 Pradier-Fod6r^, 1877.
s Wilson, Hague Arbitration Cases, p. 158.
152 INTERNATIONAL LAW
administration of the maritime and sanitary police, both at
Antivari and along the coast of Montenegro, shall be carried
internattonai out by Austria-Hungary by means of light coast-
S?e «d «"««d vessels " > ;
negmtiye. (2) negative, implying that a state is to refrain
from certain acts, otherwise customary, as " Montenegro shall
neither have ships of war nor flag of war." *
Among the positive aervUvdes are: those obligations of a
state to allow within its own jurisdiction the exercise of politi-
cal or administrative authority by another state, as in the
execution of judicial or police regulations; those obligations
to allow the exercise of military authority, as in military occu-
pation of a portion of the territory or the passage of troops.
Among the negative servttvdes are : those obligations of a state
to refrain from exercising within its own jurisdiction certain
political or administrative authority which might be exercised,
if the servitude did not exist, as in the exemption of the citizens
or corporate persons of certain states from certain acts of juris-
diction or taxation ; those obligations to refrain from military
acts, such as the limitation of the army or navy to a certain
tonnage, as in the Treaty Limiting Naval Armament, February
6, 1922, or the obligation not to fortify a certain place.^
(6) There are also servitudes which may be called gen-
Genend ^''^'» because binding ahke upon every state in
servitudes. favor of all others, such as the innocent use of
territorial seas.^
» rV Hertslet, 2783. « Ibid.
*By Article XIX of the Treaty LimitiDg Naval Armament, February 6,
1022, the United States, the British Empire, and Japan agree upon the status
quo in regard to fortifications and naval bases in a defined area of the Pacific
Ocean. See also Treaty of Versailles, June 28, 1919, Arts. 42-44.
* For the general question, see 2 Pradier-Fod6r6, 834, 845.
OUTLINE OF CHAPTER XH
PROPERTY
69. PROPERTY IN GENERAL.
70. STATE PROPERTY IN INTERNATIONAL LAW.
154
CHAPTER Xn
PROPERTY
68. Property in General
The term " property " has been used in varying senses by
writers upon international law. By virtue of the fact that
a state has jiuisdiction over all its public property there has
sometimes been confusion between the two terms, but juris-
diction may, and does, extend to persons and things of which
proprietorship cannot be aflSrmed by the state.
In the sense commonly used in international law the prop-
erty of a state is held to be all the lands, water, and air within
its limits. Within this territory the state has rights to the ex-
clusion of other states, and upon the land area may exercise
the right of eminent domain.
The idea of property in this international sense Is distinct
from that of private ownership, which is merely relative and
depends upon the regulations of the state; indeed, private
property may be seized for the debts of the state.
A state may hold absolute possession of such objects as
are capable of appropriation, as lands, buildings, and other
material resources for public purposes. In some cases the
state owns the railroads, telegraphs, mines, etc. In time of
war such property receives treatment somewhat diflPerent from
that of private property, and in time of peace it may receive
special recognition, e,g, houses of ambassadors.
70. State Property in International Law
Hall outlines this subject as follows : " A state may own
property as a private individual within the jurisdiction of
another state; it may possess the immediate as well as the
155
156 INTERNATIONAL LAW
ultimate property in movables, land, and buildings within
its own territory ; and it may hold property in its state capacity
in places not belonging to its own territory, whether within
or outside the jurisdiction of other states." * Property of the
first class falls under the local law of the state in which it is.
Property of the second class may come within the scope of
international law in time of war. Property of the third class
may come within the scope of international law both in time
of peace and of war. If a state should abolish all distinction
between public and private property and take title to all prop-
erty within its jurisdiction, the treatment of such property
would be determined by its nature and use.
1 Haa, p. 171.
OUTLINE OF CHAPTER XHI
DIPLOMACY AND INTERNATIONAL RELATIONS IN
TIMES OF PEACE
71. GENERAL DEVELOPMENT OF DIPLOBftACT.
72. DIPLOBftATIC AGENTS.
(a) HistQiy.
(1) Privileges of ambassadors.
(2) Diplomacy as an art in Italy.
(8) Permanent ambassadors after the fifteenth centnry.
(4) The Peace of Westphalia, 1648, the beginning of modem
international relations.
(6) Diplomatic friction, 1648-1816.
(h) Rank of state agents.
(1) Titles of diplomatic agents.
(a) Diplomatic agents of the first class.
(b) Envoys extraordinary, envoys ordinary, and minia-
ters plenipotentiary.
(c) Ministers resident.
(d) Charg6s d'affaires.
(2) Reciprocity between states in the grade of agents.
78. SUITE, OR PERSONNEL OF A MISSION.
(a) Official suite consists of the functionaries.
(b) Non-official suite includes the family and household servants of
the agent.
74. WHO MAY SEND DIPLOBftATIC AGENTS.
76. WHO MAT BE SENT AS DIPLOMATIC AGENTS.
(a) Case of Mr. Keiley.
76. CREDENTIALS, INSTRUCTIONS, AND PASSPORT.
77. DIPLOMATIC CEREMONIAL.
(a) Historical tendencies in ceremonial.
(b) Ceremonial of reception of an agent.
158
(c) Rules of precedence and places of honor.
(d) Prerogatiyes appertaining to diplomats of the first rank.
(e) Salutes to diplomatic representatives.
78. IMMUlWrnKS AND PRIVILEGES.
(a) Inviolability of the person of the diplomatic agent
(1) Basis of the privilege.
(2) Extent of the privilege.
(8) Limits of immnnity.
(h) Exterritoriality and exemptions.
(1) Exemption of agent from the criminal Jurisdiction of the
receiving state.
(2) Exemption of agent from dvil jurisdiction of the receiving
state.
(8) Immunities of family and suite of agent.
(4) The diplomatic residence exempt from local jurisdiction.
(6) Right of asylum in the house of the ambassador now
generally denied.
(6) Agent generally exempt from personal taxes.
(7) Freedom of religious worship.
79. FUlfCnONS OF A DIPLOBftATIC REPRESENTATIVE.
(a) To direct the internal business of the legation.
(b) To conduct the negotiations with the state to which he is ac-
credited.
(c) To protect fellow-citizens, to issue and vis6 passports and cer-
tificates, and to present and certify extradition papers.
(d) To make reports to his home government
80. TERBONATION OF MISSION.
(a) Through the death of the diplomat
(b) In ordinary course of events.
(c) Under stridned relations.
(d) Ceremonial of departure.
81. DIPLOBftATIC PRACTICE OF THE UNITED STATES.
(a) International relations the province of the Department of State.
(b) Supreme Court has original jurisdiction over diplomatic agents.
(c) Diplomatic agents forbidden to receive presents.
(d) Diplomatic agents may protect subjects of other friendly powers
in case of revolution.
(e) Diplomatic agents forbidden to participate in the political con-
cerns of receiving country.
(/) Joint action with diplomatic agents of other powers at a foreign
court deprecated.
(g) Regulations regarding oflicial dress.
(h) Compensation 9f diploniatic agents.
159
82. CONSULS.
(a) History.
(b) Rank of consuls a matter of domestic law.
(c) Nomination and reception of consuls.
(d) Great variety of functions of the consul.
(1) Duties in connection with commercial interests.
(2) Duties relating to maritime senrice.
(8) Represents certain interests of his fellow-citizens.
(4) Furnishes information to his state.
(e) Special powers in Eastern states.
(/) Privileges and immunities vary in different states.
(jf) Termination of the consular office.
(h) Appointment of consuls in United States.
160
CHAPTER Xm
DIPLOMACY AND INTERNATIONAL RELATIONS IN
TIMES OF PEACE
71. General Development of Diplomacy
DiPLOBfACT may be broadly defined as the art and science
of international negotiation.^ The conditions which make
possible established relations among states are of compara-
tively recent origin. In the days when stranger and enemy
were not distinguished, and when '' strange air made a man
unfree/' there could be no extended relations among states.
In very early times, however, states had some relations with
one another, and a few general principles were observed in
carrying on such business as might be necessary. These grow-
ing relations have given rise to what is known as the right of
legation. Sometimes a right of intercourse between states has
been claimed on the ground that the citizens of one state cannot
be excluded from the natural advantages of another state, on
the ground that all men have an equal right to innocent use of
the earth's resources, or on more abstract grounds of moral
duty variously interpreted. As the actual practice of states
never has recognized such a right, to contend for it would hardly
be necessary. States put restrictions upon commerce, even to
the exclusions of goods and persons. In some cases where the
terms of the state enactment may not be prohibitive, the con-
ditions of admission amount to practical prohibition.'
^ For other definitionB see I Satow, 1.
s U. 8. Chinese Exclusion Act, 1882. 5 U. S. Comp. Sts. I 4290 et teq.
161
162 INTERNATIONAL LAW
The influence of commerce in its many forms, the idea of
Unity of mankind in its various manifestations, the growth
of neighborhood on the part of European states, and the neces-
sity of respect for each other on the part of these states, made
interstate relations imperative and convenient. While the
right of intercourse might be questioned, the necessity and con-
venience of interstate relations admitted of no question.
72. Diplomatic Agents
(o) In very early times special privileges were extended to
heralds, ambassadors, or other bearers of the state will. Laws ^
— ^ . and history record as a fact this practice which
Privileges of had long been observed. The ambassador was
am MSA ors. Qf^u ^ person who in his own state held some
priestly office. In the days of the Roman dominance, the office
of ambassador was conunonly exercised by one holding a re-
ligious office, and while the unity represented by the church
remained prominent, its officials were often ambassadors. Both
from necessity and from the sacred character of the person, the
ambassador was usually regarded as inviolable. The person
of the ambassador was respected long before there was any
recognition of the rights and dignity of states as states. In
order that there might be any such intercourse, it was necessary
that the agents should not be placed in undue personal peril.^
With the preeminence of the Italian city states in the Middle
Ages there came the development of diplomacy as an art. The
Diplomacy as Diost distinguished men of the times were called
an art in Italy, to this state service. Machiavelli's name is in-
separably linked to one school of diplomacy. Dante, Petrarch,
Boccaccio, and others whose names have become famous,
were sent on missions.'
1 Digest. LVII. 17. < 3 Pradier.Fod6r6. 1233.
* Nys, *' Lea Origines du Droit International," 297 ; I Hill. History of Euio-
pean Diplomacy, 308.
DIPLOMACY AND DTTBRNATIONAL RELATIONS 163
During the thirteenth century, Venice outlined the policy
which her ambassadors should follow, and there the system
of foreign representation became well established. This sys-
tem included the granting of a commission, instructions, letter
of credence, attaches, etc. Italy may, indeed, be called the
home of the diplomatic system.
For many years, in fact till comparatively recent times,
ambassadors were looked upon with suspicion, as spies whom
monarchs were more willing to give than to re-
ambasMdon ceive. Gradually, however, the practice of send-
tmthce^Bry *^^ ^^^ receiving ambassadors was seen to have
much value. During the fifteenth century, which
marks the beginning of the modern period in the history of
diplomacy, the practice of sending permanent ambassadors
seems to have arisen. There may have been isolated cases of
sending of permanent ambassadors before this time, but from
the fifteenth century the practice became more and more
common, though the different countries did not observe any
uniform regulations as to personnel, procedure, or in other
respects. From this time diplomacy became more of a career,
and one going on a mission to a foreign country received careful
preparation that he might outwit the representatives of the
state to which he was sent. Sir Henry Wotton's oft-quoted
definition of an ambassador, " An ambassador is an honest man,
sent to lie abroad for the good of his country," ^ describes the
attitude taken in many countries toward the office, when early
in the seventeenth century he wrote the definition in Christopher
Flecamore's album. Gradually the rules of international
negotiation became established, and treatises upon the subject
appeared.
The Peace of Westphalia in 1648, which marks the beginning
of modem international relations, showed that modern diplo-
macy had already obtained a recognition, and served to give
> Walton. " Life of Wotton," 166.
164 INTERNATIONAL LAW
it a more definite form. This date serves as a boundary to
the first division of the modern period in the history of diplo-
The Peace of DM^y* The years from the early part of the
Westphalia. fifteenth centmy to the Peace of Westphalia
are the years of beginnings. From this time the system of
permanent ministers, which so greatly changed the character
of international negotiations, became almost a necessity
through the development of the equilibrium of the states
of Europe.*
During the years 1648 to 1815 the relations of states be-
came more complex, and the business of international nego-
Dipiomatic tiation more delicate. Diplomatic practice, al-
fxiction, 1648- ways tending to look to precedent, suffered
severe strains under the ambitious monarchs
occupying the thrones of Europe after the Peace of West-
phalia. Principles and precedent were often disregarded to
obtain political ends. So great was the friction that at length
some of the more commonly disputed questions were settled
at the Congress of Vienna, 1815, and some of the remaining
questions at the Congress of Aix-la-Chapelle, 1818.
(b) The question of relative rank of state agents gave rise,
in the days before the Congress of Vienna, to many difficulties.
Rank of state '^'^^ protocol of that Congress of March 9, 1815,
acents. together with the eighth article adopted at the
Congress of Aix-la-Chapelle, November 21, 1818, gives the
basis of present practice as follows : —
" In order to prevent in future the inconveniences which
have frequently occurred, and which may still occur, from the
claims of Precedence among the different Diplomatic characters,
the Plenipotentiaries of the Powers who signed the Treaty of
Paris have agreed on the following Articles, and think it their
duty to invite those of other Crowned Heads to adopt the same
regulations : —
> Calvo, i 1311 ff.
DIPLOMACY AND INTERNATIONAL RELATIONS 165
Division of Diplomatic Characters
"Art. I. Diplomatic characters are divided into Three
classes : That of Ambassadors, Legates, or Nundos.
" That of Envoys, Ministers, or other persons accredited to
Sovereigns.
" That of Charges d' AflFaires accredited to Ministers for foreign
affairs.
Representative Character
"Art. II. Ambassadors, Legates, or Nmicios only shall
have the Representative character.
Special Missions
" Art. III. Diplomatic characters charged with any special
Mission shall not, on that account, assume any superiority of
Rank.
DiPLOBfATic Precedence
" Art. IV. Diplomatic characters shall rank in their respec-
tive classes according to the date of the official notification of
their arrival.
Representatives of the Pope
" The present Regulation shall not occasion any change re-
specting the Representative of the Pope.
Form for Reception of Diplobiatic Agents
" Art. V. There shall be a regular form adopted by each
State for the reception of Diplomatic Characters of every Class.
DiPLOBfATic Agents of Courts alued by Family or
Other Ties
" Art. VI. Ties of consanguinity or family alliance between
Courts confer no Rank on their Diplomatic Agents. The same
rule also applies to political alliances.
166 INTERNATIONAL LAW
Alternation of Signatures in Acts or Treaties
" Art. VTI. In Acts or Treaties between several Powers that
admit alternity, the order which is to be observed in the signa-
tures of Ministers shall be decided by lot.^
"Art. VIII. It is agreed between the Five Courts that
Ministers Resident accredited to them shall form, with respect
to their Precedence, an intermediate class between Ministers
of the Second Class and Charges d'Affaires." '
To the articles, except the last, Austria, Spain, France, Great
Britain, Portugal, Prussia, Russia, and Sweden were parties.
Spain, Portugal, and Sweden were not parties to the eighth
article. Theoretically these rules are binding only upon those
states parties to the treaties, but practically they are accepted
by all civilized states.
The four grades are as follows : —
1. Ambassadors, legates, and nuncios.
2. Envoys, ministers, or other persons accredited to sov-
ereigns.
3. Ministers resident.
4. Charg6s d'affaires.
The first three grades are accredited to the sovereign. The
fourth grade, charges d'affaires, is accredited to the minister
of foreign affairs.
(1) The rank of the agent does not necessarily have any re-
Titi of lation to the importance of the business which
diplomatic may be intrusted to him. The titles given to the
agen . different diplomatic agents, at the present time,
are in a general way descriptive,^ as follows : —
(a) Diplomatic agents of the first class are held to represent
the person of the sovereign. Ambassador ordinary formerly
1 1 Hertdet, 62. 63.
* Ibid,, 575. These rules have been adopted by the IT. S. Department of
State.
« I Satow, 229
DIPLOMACY AND INTERNATIONAL RELATIONS 167
designated one holding a permanent mission. Ambassador
extraordinary designated one on a special mission, or having
power to act in exceptional circumstances. This, however,
is now simply a title of somewhat superior honor giving no
other advantage. Papal legates and nuncios rank as, and for
practical purposes are, ambassadors extraordinary, though
representing particularly ecclesiastical affairs and the Pope
as head of the Church. Legates are chosen from the cardinals
and sent to countries recognizing the papal supremacy.^ The
representative of the Pope is usually accorded the position of
" Doyen " of the " Diplomatic Corps " in states receiving repre-
sentatives of the Pope. Otherwise, the " Doyen " is the senior
diplomat of the highest rank.
(b) Envoys extraordinary, envoys ordinary, and ministers
plenipotentiary have in general the same functions and rank.
With these rank the papal internuncio. The general idea is
that the agents of the second class do not stand for the person
of the sovereign, but for the state.
(c) Ministers resident are regarded as upon a less im-
portant mission than the agents of the first or second class.
They are frequently sent by the greater powers to the lesser
powers.
(d) Chargis d'affaires ceremonially rank below the minis-
ters resident. They are accredited to the minister of foreign
affairs, whil^ members of the first three classes are accredited
to the sovereign. A charge d'affaires may perform the func-
tions of the higher grades of agents and has the same general
privileges. When a consul is charged with a diplomatic mis-
sion he ranks with the charg6s d'affaires. Commissioners on
various missions are sometimes accorded the same rank ; but,
as they do not bear the title, commissioners cannot claim the
rank of the charg£ d'affaires, though in their functions there
may be no difference.
1 Calvo. i 1328 fiP.
168 INTERNATIONAL LAW
(2) There is no rule as to the grade of diplomatic agent
which one state shall send to another, though it was formerly
„ . .^ held that only states entitled to royal honors
R6ci|irocity u , '
tothesrado could send ambassadors. It is now customary
o scents. 1^^ states to agree among themselves as to the
relative ranks of their diplomatic agents. Thus the United
States by an act of 1893 provided that " whenever the President
shall be advised that any foreign government is represented
or is about to be represented in the United States by an am-
bassador, envoy extraordinary, minister plenipotentiary, minis-
ter resident, or special envoy or charge d'affaires, he is author-
ized in his discretion to direct that the representative of United
States to such government shall bear the same designation.
This provision shall in no wise affect the duties, powers, or
salary of such representative." ^
The rank of a diplomatic agent is a mark of dignity and
honor particularly of consequence in matters of etiquette and
ceremonial. Reciprocity between states is the general rule in
the grade of agents. The old theory that agents of the first
rank had access to the ear of the sovereign is no longer held,
and all grades alike represent both the sovereign and the state
from which they come.
73. Suite
The personnel of a mission may be distinguished as the
official and the non-official.
(a) The official suite consists of the functionaries, and varies
in number according to the dignity and importance of the
mission. Formerly the number was scrutinized
Offlcitl suits. .1 1 # 1
With great care, owing to the fear that a numerous
suite might endanger the safety of the receiving state. The
official suite may include, (1) the counselor to the mis-
sion, (2) the secretaries, (3) the attaches, military, naval,
1 March 1. 1893. 27 U. S. Sts. at Large, c. 182.
DIPLOMACY AND INTERNATIONAL RELATIONS 169
and others, (4) the interpreters and dragomans, (5) the clerks
and accountants, (6) the couriers, (7) the chaplain, (8) the
doctor, and in some instances other officers necessary for the
performance of the official functions.
(6) The non-official suite includes the family of the dip-
Kan-oiBdAi lomatic agent and those in his household em-
■■*^- ploy. This may include, beside his immediate
family, (1) the private chaplain, (2) the private doctor, (3)
the private secretaries, (4) the domestic servants of various
grades.
74. Wbo May Send Diplomatic Agents
It is the general rule that sovereign states only may send
ambassadors or other diplomatic agents. Sometimes diplo-
matic relations are maintained between states when both are
not fully sovereign, as was the case in the relations between
Bavaria, a member of the Grerman Empire, and France. In
general, where the sovereignty of a state is not complete, its
right of legation is fixed by the treaty which impairs its sov-
ereignty. A state which has not full sovereign powers may have
a partial right of legation, either active or passive, or a right to
send diplomatic agents with limited functions.
The sending of a diplomatic agent is essentially an act of
the sovereign person, whether he be a monarch, president,
council, or have other title. The domestic law determines
who this person shall be. International law makes no dis-
tinction.
In each state a department, usually called the department
of foreign affairs, has the business of international inter-
course in charge. The organization of this department and
the general methods of operation are matters of domestic law.
All foreign states need to know is to what extent this depart-
ment is competent to carry on negotiations.
170 INTERNATIONAL LAW
76. Wbo May Be Sent
Before actually sending a diplomatic agent, a state usually
obtains assurance from the receiving state that the proposed
agent will be an acceptable person. If the proposed agent
is a persona non grata, it is held that the foreign state is not
obliged to give its reasons for refusing to receive him. To
refuse a given person does not imply any lack of courtesy to
the sending state on the part of the refusing state. A state
may refuse to receive one of its own citizens as the minister of
a foreign state. Sometimes states have refused to receive those
who have in the sending state taken positions manifesting
hostile disposition toward the receiving state.
In 1885 the Italian government refused to receive Mr. Keiley
as United States representative on the ground that he had
Case of denounced the overthrow of the temporal power
Mr. KeUey. of the Pope. It was considered probable that
one who had taken so decided an attitude toward an action
of the government to which he was sent would hardly be
acceptable. Mr. Keiley a few weeks later was refused by
Austria-Hungary on the ground that his wife was a Jewess and
his marriage only a civil one. President Cleveland showed
his attitude toward this action in his first annual message, 1885.
"The Austro-Hungarian government finally decided not to
receive Mr. Keiley as the envoy of the United States, and that
gentleman has since resigned his commission, leaving the post
vacant. I have made no new nomination, and the interests
of this government at Vienna are now in the care of the secretary
of legation, acting as chargg d'affaires ad inierim." ^
76. Credentials, Instructions, Passport
Before starting upon his mission, a diplomatic representa-
tive receives, if of one of the first three classes, from the
> 8 Richardson, Measages, p. 326.
DIPLOMACY AND INTERNATIONAL RELATIONS 171
head of the state, if of the fourth class (charg6 d'affaires),
from the minister of foreign affairs, a letter of credence. In
i^^tten of ^6 United States the President signs the letters
•'•^•■**- of credence of diplomatic agents above the rank
of charg6 d'affaires.^ In these instances the letter b ad-
dressed to the head of the foreign state. In the case of
charg6 d'affaires the letter is addressed to the minister of foreign
affairs and signed by the Secretary of State. A letter of cre-
dence gives the name, the character and general object of the
mission, and requests for the agent full faith and credence as the
state's representative. In case of representatives to Turkey,
besides the letter to the Sultan, formerly letters were also taken
to the grand vizier and to the minister of foreign affairs. Rep-
resentatives of the Pope carry in place of letters of credence
papal bulls. Sometimes a diplomatic agent receives also letters
of recommendation to persons of importance in the foreign
country. These letters have a sen\i-official character in many
cases. While a letter of credence may give power to open treaty
negotiations, it is usual to ^ve a special letter conferring full
powers or general fuU powers to close and sign a treaty, or to
act in behalf of the state in some manner not covered by his
instructions. These letters are conunonly letters patent.
The diplomatic agent also customarily receives instruc-
tions which may be either for his own guidance or to be com-
_^^_ municated to the foreign state. If to be com-
municated to the foreign state, the instructions
make more fully known his special functions. In all cases the
agent is bound by his instructions, and should there be doubt
as to method of action it is easy, in these days of rapid com-
munication, to entertain a matter ad referendum.
The diplomatic agent also receives for himself, family and
suite, a special passport. The special passport " differs from
> President Wilflon signed the Treaty of Veraailles " in his own name and by
own proper authority."
172 INTERNATIONAL LAW
the ordinary passport in that it usually describes the official
rank or occupation of the holder, and often also the purpose of
Special ^^^ traveling abroad, while generally omitting the
passport. description of his person."^ This may serve not
only the purpose of the ordinary passport, but may also give
an official introduction to the bearer.
The papers usually furnished to diplomatic representatives of
the United States include : —
1. A sealed letter of credence to the head of the state or
minister of foreign affairs according to rank of the representative.
2. " An open office copy of the letter of credence."
3. The special passport above mentioned.
4. " A copy of the Register of the Department of State."
5. A letter of credit upon the bankers of the United States.
6. A copy of Instructions to the Diplomatic Officers of the
United States.
7. A copy of the Consular Regulations of the United States.
(poRM of)
LETTER OF CREDENCE
A B
President of the United States of America.
To
Gbeat and Good Fiuend:
I have made choice of
one of our distinguished citizens, to reside near the Government of
Your in the quality of
He is well informed of the relative interests of the two countries and
of our sincere desire to cultivate to the fullest extent the friendship
which has so long subsisted between the two Governments. My knowl-
edge of his high character and ability gives me entire confidence that he
will constantly endeavor to advance the interest and prosperity of both
Governments, and so render himself acceptable to Your
1 '* The American Passport," U. S. Dept. SUte, 1898, p. 7.
DIPLOMACY AND INTERNATIONAL RELATIONS 173
I therefore request Your to receive him favorably and
to give full credence to what he shall say on the part of the United States,
and to the assurances which I have charged him to convey to you of the
best wishes of this Government for the prosperity of
May God have Your in His wise keeping.
Written at Washington this day of in the
year
Your good friend,
A B
By the President,
Secretary of Stale.
77. Diplomatic Ceremonial
(a) In certain countries diplomatic ceremonial has been
very elaborate and complex. The tendency during the nine-
teenth century was toward simplification. Each state has the
power to determine its own ceremonial for the most part.^
Of course no state can disregard established rules as to rank,
precedence, and similarly generally recognized practices. At
^^^^ the time when these practices originated it was
tendencies in imperative that there should be some fixed mode
of procedure which a state could follow without
giving offense in its treatment of a foreign representative.
Much of the ceremonial became fixed during the latter part of
the seventeenth and during the eighteenth century. In the
days of absolutism the monarch naturally demanded such
recognition of his representative in a foreign country as befitted
his own estimate of the dignity of the monarchical office. It
may not be unfortunate that the monarch placed a high estimate
upon the. sovereign office and devised a ceremonial commen-
surate with this jestimate, for what was once done out of respect
for and in response to the demand of a personal sovereign, is
now done out of respect for the dignity of the state itself. Thus
< 1 Satow 339
174 INTERNATIONAL LAW
in the days of more democratic sovereignties international rep-
resentatives are clothed with a dignity which both elevates the
attitude of i>articipants in international negotiations and gives
greater weight to their conclusions. The ceremonial also fixes
a definite coiu-se of procedure which any state may follow with-
out giving offense to another, whether it be weak or powerful.
(6) While the minor details of the ceremonial of reception
of a diplomatic agent are not invariable, certain customs are
Reception of well established. A diplomat officially notifies
■n agent. ^^ receiving state of his arrival by sending,
(1) if he be of the first rank, a secretary of the embassy to
the minister of foreign affairs, with a copy of his letter
of credence and a request for a day and hour when he may
have an audience with the head of the state in order to
present his credentials, (2) if of the second rank, while some-
times the above procedure b allowed, he usually makes the
announcement and request in writing, (3) if of the third rank,
he always observes the last-mentioned procedure, (4) if of
the fourth rank, charg6 d'affaires, he notifies the minister of
foreign affairs of his arrival and requests an audience.
The audience may be for any grade more or less formal, public
or private. Usually diplomats of the first rank are received in
public audience. At the audience the diplomat presents his
letter of credence, and usually makes a brief address, of which
he has earlier furnished a copy to the minister of foreign affairs
in order that a suitable reply may be prepared. Diplomats of
the second rank customarily receive a similar solemn audience.
This may or may not be granted to ministers of the third rank.
Official visits, varying somewhat in ceremonial in different
states, follow.
(c) From the time when permanent missions began to be
common, conffict between the representatives of different
states made necessary fixed rules of precedence. As Wicquef ort
said in the latter part of the seventeenth century, "One of
DIPLOMACY AND INTERNATIONAL RELATIONS 175
the things that most hinders Embassadors from paying one
another civilities, is the Contest they have concerning Honours
Rniflsof &i^ Rank; not only on Account of the Com-
prMedeiiM. petition of their Masters, but sometimes also
by Reason of some Pretensions they have amongst themselves." ^
Wicquefort's citations of cases give ample evidence of the
confusion prevailing in his day. Bynkershoek, in " De Foro
Legatorum/' Chapters I and XII, shows that the confusion
was scarcely less in 1721, though the rank by title was com-
ing to be more fully recognized. Vattel in 1758 shows that
there had arisen a more definite ceremonial ' and a fairly clear
gradation, yet as this had never been agreed to by any
considerable number of states, and was not in accordance with
any generally recognized principle, there were contests still.
By the Congress of Vienna (1815) and Aix-la-Chapelle (1818)
many of the disputed points in regard to precedence were ad-
justed. Certain general propositions are now admitted, such
as, that no diplomat can pretend to special honors or immunities
above other diplomats of the same rank.' The rule of the
Congress of Vienna is followed, by which diplomats of the same
class rank according to the precedence in the date of the official
notification of their arrival.
Places of honor are now quite definitely fixed. On ceremonial
occasions, where the representatives are seated at a table, as
Places of i^ &^ international congress, it may be somewhat
honor. varied as fronting the main window, opposite
the main entrance to the room, in the place receiving the
light over the left shoulder. When the place is detennined
by the relation to the head of the table or the presiding
officer, the first honor, except in Turkey, China, and in some
religious ceremonials, is at his right, the second at his
^ Wioquefort, " The Embassador and His FunctJons/' Digby's traofllatbn,
Ch. XXII, p. 201 ; 1 Satow, 339 et aeq.
< ** Droit des gens/' Liv. IV. Ch. VI. « Calvo. % 1328 ff.
176 INTERNATIONAL LAW
left, the third In the second place on the right, the fourth
in the second place on the left, and so on. In processions
the place of honor is sometimes first, sometimes last. For
relatively short processions, certain more definite rules are
usually observed. When only two participate, the first place
is the place of honor ; when three participate, the middle place^
the place in advance being the second honor and the place in the
rear the third ; when four participate, the second place is the
place of honor, the place in advance the second, the third and
fourth being in honor in order ; when five participate, the middle
is the place of honor, the second place being the second in honor,
the first the fourth in honor, the fourth the third in honor, and the
fifth the fifth in honor.^ These rules are not invariable, how-
ever.
To avoid friction as to place of honor in signing treaties,
etc., the principle of the altemat is usually followed, by which
the copy going to a given nation has the name of its own repre-
sentative first in order.' Sometimes the order is determined
by lot, and sometimes is alphabetical in the order of the names
of the states parties to the treaty.
(d) Certain prerogatives are held to appertain to the office
of ambassador and to diplomats of the first rank. Among
these are: (1) the title of Excellency,' (2) the
right to remain covered in the presence of the
sovereign, unless the sovereign himself is uncovered, (3) the
privilege of a dais in his own home, (4) the right to use a " coach
and six ** with outriders, (5) military and naval honors, (6) the
use of the coat of arms over the door, (7) invitations to all court
ceremonies. This last is usually extended to all diplomats.
Those of lower rank than the ambassador sometimes claim mod-
ified forms of the above prerogatives.
> Lehr, ** Manuel des Agents DiplomatiqueB,*' i 367 £F.
* The Department of State instructs the representatives of the United States
to follow this practice.
* 1 Satow, 354.
DIPLOMACY AND INTERNATIONAL RELATIONS 177
Many of the interesting phases of diplomatic ceremonial are
survivals of forms which in earlier days were most jealously
and strenuously guarded. The closer relations of states and
better understanding of mutual relations have made unnece^
sary the observance of many forms once vital to harmony.^
Many courtesies are regarded as due diplomatic representa-
tives by virtue of their rank. These are not uniform at the
various courts, but generally include notification of accession
to the throne, notifications of births and deaths in the royal
family, congratulations and condolences as public events war-
rant, and many others.
(e) Diplomats are also entitled to receive salutes, which are
usuaUy arranged for in advance. The ambassador receives a
^^^ salute of nineteen guns; envoys extraordinary
and ministers plenipotentiary, fifteen ; the minis-
ter resident, thirteen ; and the charg6 d'affaires, eleven.
78. Immunities and Privileges
Few subjects involved in international relations have been
more extensively discussed than the privileges and immunities
of diplomatic agents. Many of the earliest treatises on inter-
national affairs were devoted to such questions. In order that
any business between states might be carried on, some prin-
ciples upon which the diplomatic agent could base his action
were necessary. The treatment of the agent could not be left
to chance or to the feeling of the authorities of the receiving
state. Gradually fixed usages were recognized. These im-
munities and privileges may be considered under two divisions :
personal inviolability, and exemption from local jurisdiction,
otherwise known as extraterritoriality.
(a) The person of the agent was by ancient law inviolable.
According to the dictum of the Roman Law, sancti habentur
* 1 Satow, 356.
178 INTERNATIONAL LAW
legcUi. In accord with this principle the physical and moral
person is inviolable. Any offense toward the person of the
inYioUbiiity of ^-nibassador is in effect an offense to the state
the penon of which he represents, and to the law of nations.
The receiving state is bound to extend to the diplo-
matic agent such protection as will preserve his inviolability.
This may make necessary the use of force to preserve to the
diplomatic agent his privileges. The idea of inviolability, as
Calvo says, is absolute and unlimited, and based, not on simple
Basis of the Convenience, but upon necessity. Without it
priyUege. diplomatic agents could not perform their func-
tions, for they would be dependent upon the sovereign to
whom they might be accredited.* In many states laws
have been enacted during the last half of the nineteenth
century fixing severe penalties for acts which affect the diplo-
matic agent unfavorably in the performance of his functions or
reflect upon his dignity.*
The privilege of inviolability extends, (1) alike to agents
of all classes ; (2) to the suite, official and non-official ; (3) to
Extent of the such things as are convenient for the performance
priTiiege. ^f ^g agent's functions; (4) during the entire
tim^ of his official sojourn, i.e., from the time of the an-
nouncement of his official character to the expiration of a
reasonable time for departure after the completion of his mis-
sion. This also holds even when the mission is terminated by
the outbreak of war between the state from which the agent
comes and the state to which he is accredited. (5) By courtesy
the diplomatic agent is usually, though not always, accorded
similar privileges when passing through a third state in going
to or returning from his post.
A diplomatic agent may place himself under the law, says
1 "Droit Int.," | 1481 ff.
< 1 Lehr. "Manuel," \i 988-098; 1 Satow, 254; In le Republic of Bolivia
Exploration Syndicate, L. R. (1914), Ch. 139.
DIPLOMACY AND INTERNATIONAL RELATIONS 179
Despagnet, so far as attacks upon him are concerned: (1)
when he voluntarily exposes himself to danger, in a riot, duel,
civil war; (2) when in his private capacity
immimity. ^® ^^^^ ^** which is liable to criticism,
e.g., as a writer or artist, provided the criticism
should not degenerate into an attack upon his public character ;
(3) when the attacks upon him are in legitimate personal self-
defense ; (4) when, by his actions, he provokes on the part of
the local government precautionary measures against himself,
e.g, if he should plot against the surety of the state to which he
is accredited.^ Only in the case of extreme necessity, however,
should any force be used. It is better to ask for the recall of
the agent. In case of refusal or in case of urgent necessity the
agent may be expelled.
(b) Exemption from local jurisdiction of the state to which
a diplomatic agent is sent, or extraterritoriality in a limited sense,
EztraterritofiAi- ^^^3 naturally from the admitted right of invio-
ity and exemp- labUity. The term " extraterritoriality " is a con-
venient one for describing the condition of immu-
nity which diplomatic agents enjoy in a foreign state, but it
should be observed that the custom of conceding these immu-
nities has given rise to the " legal fiction of extraterritoriality,"
rather than that these immunities are based on a right of extra-
territoriality. The practice of granting immunities was com-
mon long before the idea of extraterritoriality arose.' The
exemptions give to diplomatic agents large privileges.
(1) The diplomatic agent is exempt from the criminal juris-
diction of the state to which he is accredited. In case of viola-
tion of law the receiving state has to decide whether the
offense is serious enough to warrant a demand for the recall of
the agent, or whether it should be passed without notice. In
> Despagnet, '* Droit international public," de Boeck 4th ed., 1 235 ; Heffter,
§204.
» Gro^ua. " Ih Jiw B^Ui," II, 18,
180 INTERNATIONAL LAW
extreme cases a state might order the agent to leave the
country, or in case of immediate danger might place the agent
A * «* under reasonable restraint. Hall considers these
Agent exempt • # •
from criminal " as acts done in pursuance of a right of exercis-
^ ing jurisdiction upon sufficient emergency, which
has not been abandoned in conceding immunities to diplomatic
agents." *
(2) The diplomatic agent is exempt from civil jurisdiction
of the state to which he is sent, and cannot be sued, arrested,
^ ^ ^ or punished by the law of that state.* This
Acent exempt '^ *^
from civil rule is sometimes held to apply only to such pro-
juriBdiction. ceedings as would affect the diplomat in his
official character ; but unless the diplomat voluntarily assume
another character, he cannot be so proceeded against. If
he become a partner in a firm, engage in business, buy stocks,
or assume financial responsibilities, it is held in theory by some
authorities that the diplomatic agent may be proceeded against
in that capacity. The diplomatic agent of the United States
is distinctly instructed that " real or personal property, aside
from that which pertains to him as a minister, ... is subject
to the local laws." ' The practice is, however, to extend to
the diplomat in his personal capacity the fullest possible im-
munity, and in case of need to resort to his home courts, or to
diplomatic methods by appeal to the home government, for the
adjustment of any difficulties that may involve its representative
in foreign court proceedings. The real property of the diplo-
matic agent is, of course, liable to local police and sanitary regu-
lations. In cases where a diplomatic agent consents to submit
himself to foreign jurisdiction, the procedure and the judg-
ment, if against him, cannot involve him in such manner as
seriously to interfere with the performance of his functions.
1 HaU, p. 183.
* 7 U. S. Comp. Sts. %\ 4063, 4064 ; Wheat D.. 308-310.
* Jnstruciiona to Diplomatic Officers, 1897, ) 47.
DIPLOMACY AND INTERNATIONAL RELATIONS 181
He cannot be compelled to appear as witness in a case of which
he has knowledge; however, it i^ customary in the interests
of justice for the diplomatic agent to make a deposition before
the secretary of the legation or some proper officer. By the
Constitution of the United States, in criminal prosecutions the
accused has a right to have the evidence taken orally in his pres-
ence. The refusal of M. Dubois, the Dutch minister to the
United States in 1856, to give oral testimony, resulted in his
recall.^ The Venezuelan minister, however, testified in open
court as a courtesy to the United States government in the trial
of the assassin of President Garfield.' The United States at
the present time maintains that " a diplomatic representative
cannot be compelled to testify, in the country of his sojourn,
before any tribunal whatsoever.'-' This may be considered
the generally accepted principle, though the interests of general
justice and international courtesy frequently lead to voluntary
waiving of the rule with the consent of the accrediting state.
(3) The official and non-official family enjoy the immunities
of their chief as necessary for the convenient performance
imntQiiities of ^' ^^^ mission. Questions in regard to the im-
funUy and munities of the non-official suite have sometimes
arisen. To avoid this it is customary for the
diplomat to furnish the receiving state with a list of his family.
Great Britain does not admit the full immimity of domestic
servants. When Mr. Gallatin was United States minister to
Great Britain, hb coachman, who had committed an assault
beyond the hdtel of the minister, was held liable to the local
jurisdiction. As a diplomatic agent can voluntarily turn over
an offender to the local authorities, and as he would naturally
desire the observance of local law, there would be little danger
of friction with local authorities anywhere, provided a just cause
could be shown.
Couriers and bearers of dispatches are entitled to inmiuni-
1 4 Moore, I 662. * Ibid,
182 INTERNATIONAL LAW
ties so iar as is necessary for the free performance of the specific
function.
(4) The house and all grounds and buildings within the limits
of the diplomatic residence are regarded as exempt from local
jurisdiction. Great Britain claimed the right of entry to arrest
Mr. Gallatin's coachman above mentioned, though admitting
that such entrance should be made at a time to suit the con-
venience of the minister if he did not care to hand him over
directly. This immunity extends also to car-
midence^- riages and other necessary appurtenances of the
empt from local mission,
juiisdictioii.
Children born to the official family in the house
of the diplomatic agent are considered as born in the state by
which the agent is accredited:
(5) The right of asylum in the house of the ambassador is
now generally denied. In 1726 the celebrated case of the Duke
Ri£iitof ^' Ripperda, charged with treason, gave rise to
Myittrngen- the decision by the Council of Castile that the
eraiiy e e . Ju^e could be taken from the English legation by
force if necessary, because the legation, which had been estab-
lished to promote good relations between the states, would other-
wise be used for overthrowing the state in which it had been
established.^ It may be regarded as a rule that, in Europe and
in the United States, the house of a diplomatic agent affords
only temporary protection for a criminal, whether political or
otherwise, and that on demand of the proper authority the crim-
inal must be surrendered. Refusal is a just ground for demand
for recall of the diplomatic agent. The United States instructs
its agents that '' The privilege of immunity from local jurisdic-
tion does not embrace the right of asylum for persons outside
of a representative's diplomatic or personal household." * The
right of asylum is, however, recognized in practice, both by the
» Do Martens, " Causes C«.," I, 174.
* Instructions to Diplomatic Officers, 1S97, ( 60«
DIPLOMACY AND INTERNATIONAL RELATIONS 183
United States and European nations, as pertaining to the houses
of the diplomats in some American states.^ The United States,
in 1870, tried without avail to induce the European nations
to agree to the discontinuance of the practice. In 1891, in
Chile, Minister Egan, of- the United States, afforded refuge
in the legation to a large number of the political followers
of Balmaceda. Chile demanded his recall, but the United
States maintained that a reason should be assigned for such
demand. In Eastern countries it has been the practice to
afford asylum in legations in times of political disturbance
and to political offenders. In 1895 the British ambassa-
dor at Constantinople gave asylum to the deposed grand
vizier at Constantinople. It may be said, however, that the
tendency is to limit the granting of asylum to the fullest pos-
sible extent,' and finally to abolish the practice altogether, as
has been the case with the ancient extension of this privilege
to the neighborhood of the legation under the name of jtuf
qiiarteriorum,
(6) In general, the diplomatic agent is exempt from per-
sonal taxes and from taxes upon his personal goods. The
Taxation property owned by and devoted to the use of
exemptiona. i]^^ mission is Usually exempt from taxation.
In this respect the principle of reciprocity is followed among
some states. The taxes for betterments, such as paving,
sewerage, etc., are regarded as proper charges upon the
mission. A state has a right to make such regulations as it
deems necessary to prevent the abuse of this immunity from
taxation. It is also customary for a third state to grant to
a diplomat passing through its territory immunity from duties.
Diplomatic agents are also exempt from income, military, win-
dow, and similar taxes.
^See action of American and Italian Legations in Peru, 1913, U. S. For.
Eel. 1913, p. 1141.
* 1 Satow, p. 290.
184 international" law
■
(7) It is hardly necessary now to mention the fact that the
diplomatic agent is entitled to freedom of religious worship
f within the mission, provided there be no attempt
reiigiottt by bell, symbol, or otherwise to attract the atten-
^*"^" tion of the passer-by to the observance. This
privilege was formerly of importance, but now is never ques-
tioned.
79. Functions of a Diplomatic Representative
The functions of a diplomatic representative in a broad
sense are, to direct the internal business of the legation, to
conduct the negotiations with the state to which he is accred-
ited, to protect citizens of his state ^ and to issue passports
tmder proper restrictions,^ and to make reports to his home
government.
(a) The internal business of the mission may in general
be classified as concerned with (1) the custody of archives,
Internal ^^^ diplomatic correspondence' involving at
bttsineMof times the use of cipher, (3) record of the work
***** of the legation, (4) the exercise of a measure of
jurisdiction over the household. In grave cases the diplo-
mat must send the offender home for trial, or under certain
circumstances, if a native of the state, hand the oflFender over
to the local authorities. Otherwise his jurisdiction is mainly
of a minor disciplinary sort. The assumption of such authority
as claimed by Sully, in 1603, when he sununarily condemned
to death one of the French suite, is now absolutely denied. In-
deed, James I would not decapitate the offender whom Sully
had delivered to him for execution. In 1896 Great Britain
denied the right of the Chinese ambassador to detain a China-
> 4 U. S. Comp. 8t8. i 3956. * 7 U. S. Comp. Sta. § 7623.
* Till the reign of Louis XIV, Latin was the language of diplomacy ; from
that time. French became more and more used. Since the Congress of Vienna,
1815, any language may be used without offense, and at Paris in 1919 and Wash-
ington in 1021-22 both English and French were official.
DIPLOMACY AND INTERNATIONAL RELATIONS 186
man who was held in the legation under charge of political
conspiracy, and compelled his release.^
(b) The conduct of negotiations with the state to which
the representative is accredited may involve, (1) verbal com-
Conductof munications with the sovereign or ministers.
MfotifttUms. rpjjg purport of such commimications may be pre-
served in writing known as bri^s of the conversation^ or aids to the
memory. In cases of somewhat formal conversations the written
reports maj^ be called notes or memoranda. To the procfs-
terbaux, or reports of international conferences for the discus-
sion of treaty stipulations, the name protocol is usually given.
(2) Formal communications with the sovereign or ministers;
(3) the maintenance of diplomatic privileges and immunities ;
(4) such action as may be necessary to protect his state's in-
terests so far as possible, and particularly its treaty rights.
(c) The diplomat's relations to the citizens of his own country
are largely determined by the domestic law of his own state, and
Relation to usually involve, (1) a measure of protection to
feiiow-citizeiis. y^ fellow-citizens ; (2) issue and visi of passports,
and in some countries the issue of certificates of nationality
and travel certificates; (3) in cases of extradition of citi-
zens of his own state from the foreign state, the presenta-
tion of the requisition for extradition ; and in cases of extra-
dition of citizens of the state to which he is accredited from his
own state, usually the certification that the papers submitted
as evidence are "properly and legally authenticated."* In
some states diplomats are authorized to perform notarial acts.'
(4) The exercise of a reasonable courtesy in the treatment of
his fellow-citizens.
All these functions vary with local law. The practice is not
uniform, as is evidenced in the inconsistencies in regard to regu-
lations as to marriage by the diplomatic agent.^
1 1 Satow. 26S-271. > 10 U. S. Comp. Sts. § 10,116.
• 4 U. 8. Comp. 9t8. } 321 1* * Hall, n. 1, p. 195 ; Stocquart, Laws of Marriaee.
186 INTERNATIONAL LAW
\
(d) In making reports the diplomat is supposed to keep
his own government informed upon (1) the views and policy of
Reports to ^^^ stsit^ to which he is accredited, and (2) such
home facts as to events, commerce, discoveries, etc.,
govemmen ^ ^^^ seem desirable. These reports] may be
regular at specified periods, or special.
80. Termmation of Mission
The mission of a diplomatic representative may terminate
in various ways.
(a) A mission may terminate through the death of the
diplomat. In such a case there may properly be a funeral
Through death befitting the rank of the diplomat. The prop-
offtgent. grty and papers of the mission are inventoried
and sealed by the secretary, or in case of the absence of
secretaries and other proper persons, by the diplomats of
one or more friendly powers. The inheritance and private
property of the diplomat, of course, follow the law of his
country, and the property of the deceased is exempt from
local jurisdiction.
(6) The mission may terminate in ordinary coiu-se of events,
by (1) expiration of the period for which the letter of credence
In dinar? ^^ ^^^ power is granted; (2) fulfiUment of the
course of purpose of the mission, if a special mission;
(3) change of grade of diplomat ; (4) the death
or dethronement of the sovereign to whom the diplomatic
agent is accredited, except in cases of republican forms of govern-
ment. In the above case new letters of credence are usually
regarded as essential to the continuance of the mission. The
weight of opinion seems to indicate that the mission of a diplo-
mat is terminated by a change in the government of his home
country through revolution, and that new letters of credence
are necessary for the continuaijce of his mission.
(c) A mission may be interrupted or broken off through
DIPLOMACY AND INTERNATIONAL RELATIONS 187
strained relations between the two states or between the diplo-
matic agent and the receiving state. (1) A declaration of
Under ttndnad ^^ immediately terminates diplomatic relations,
rdatkms. (2) Diplomatic relations may be broken off by
the personal departure of the agent, which departure is for
a stated cause, such as the existence of conditions making
the fulfillment of his mission impossible, or the violation of the
principles of international law. (3) Diplomatic relations may
be temporarily suspended, owing to friction between the states,
as in the case of the suspension of diplomatic relations between
Great Britain and Venezuela from 1887 to 1897, owing to dis-
pute upon questions of boundary. In 1891 Italy recalled her
minister from the United States on account of alleged tardiness
of the United States authorities in making reparation for the
lynching of Italians in New Orleans on March 14, 1891.^ (4) A
diplomatic agent is sometimes dismissed either on grounds
personal to the diplomat, or on grounds involving the relations
of the two states. When, in 1888, the demand for the recall of
Lord Sackville, the British minister at Washington, was not
promptly complied with. Lord Sackville was dismissed and
his passport sent to him. Lord Sackville had, in response to a
letter purporting to be from an ex-British subject, sent a reply
which related to the impending presidential election. His
recall was demanded by telegraph, October 27. The British
government declined to grant it without time for investigation,
and his passport was sent him on October 30 even though there
seemed to be little ground for such urgency. In 1871, "The
conduct of Mr. Catacazy, the Russian minister at Washington,
having been for some time past such as materially to impair
his usefulness to his own Government, and to render intercourse
with him for either business or social purposes highly disagree-
able," it was the expressed opinion of the President that " the
interests .of both countries would be promoted ... if the head
1 For. Relations U. S. 1891. p. 658 £F.
188 INTERNATIONAL LAW
•
of the Russian legation here was to be changed." The Pres-
ident, however, agreed to tolerate the minister till after the con-
templated visit of the grand duke. The communication also
stated, " That minister will then be dismissed if not recalled." ^
(d) The ceremonial of departure is similar to that of recep-
tion. (1) The diplomat seeks an interview according to the
CeremoiiiAi of method outlined in the ceremonial of reception,
deptftore. Jn order to present his letter of recall. (2) In
case of remoteness from .the seat of government the agent
may, if necessary, take leave of the sovereign by letter, for-
warding to the sovereign his letter of recall. (3) It very
often happens that a diplomatic agent presents his successor
at the time of his own departure. (4) In case of change
of title the diplomat follows the ceremonial of departure in
one capacity with that of arrival in his new capacity. (5) It
is understood that the agent, after the formal close of his mission,
will depart with convenient speed, and until the expiration of
such period he enjoys diplomatic immunities.
81. Diplomatic Practice of the United States *
Some of the minor points of procedure and functions may
be seen by the study of the customs and rules of any large
state, as in the United States. The organization changes
frequently to meet new needs.
(a) Official communications involving international rela-
tions and general international negotiations are within the
exclusive province of the Department of State, at the head of
which stands the Secretary of State. In other states this de-
partment is commonly called the Department of Foreign Af-
fairs, and its chief is the Minister or Secretary for Foreign
Affairs, and was so designated in the United States from 1781
1 4 Moore. § 639.
* ConciM bibliosraphy , Hart, '* FoundationB of Aznerioan Foroign F61ioy»'! ppu
241-293.
DIPLOMACY AND INTERNATIONAL RELATIONS 189
to 1789. The Department of State of the United States, how-
ever, perfonns many functions not strictly within a Department
of Foreign Affairs. The functions are ordinarily shown by such
titles as the following: Divisions, for Western European,
Mexican Affairs, etc. ; for Political and Ekionomic Information,
Publications, etc. ; and various Bureaus, as Diplomatic, Con-
sular, Appointments, Archives, etc.
(b) The Constitution provides that, " In all cases affecting
ambassadors, other public ministers, and consuls," the Su-
preme Court has original jurisdiction.^
(e) A diplomatic agent cannot, without consent of Con-
gress, " accept of any present, emolument, office, or title of
any kind whatever from any king, prince, or foreign state." '
This provision does not, however, prevent the rendering of
a friendly service to a foreign power, and it may be proper
for him, having first obtained permission from the Depart^
ment of State, to accede to the request to discharge tempo-
rarily the duties of a diplomatic agent of any other state.'
(i) In case of revolution a diplomatic agent may extend
protection to the subjects of other friendly powers left for
the time without a representative.^ In neither this nor in
the preceding case does the United States become responsible
for the acts of its diplomatic representative in so far as he is
acting as agent of the other state or states.
{e) " It is forbidden to diplomatic officers to participate in
any manner in the political concerns of the country of their
residence ; and they are directed especially to refrain from pub-
lic expressions of opinion upon local political or other questions
arising within their jurisdiction. It is deemed advisable to
extend similar prohibition against public addresses, unless
upon exceptional festal occasions, in the country of official
residence. Even upon such occasions any reference to political
> U. S. Ck>n8titutton. Art. Ill, ( 2. 2. '4 Moore. (653. * Ibid,
* U. S. Constitution, Art. I, § 9, Ch. 8.
190 INTERNATIONAL LAW
issues, pending in the United States or elsewhere, should be
carefully avoided.*' ^ A diplomatic agent is forbidden to recom-
mend any person for office under the government to which he is
accredited.^ The diplomatic agent should not become the agent
to prosecute private claims of citizens.' The diplomatic agent
should not retain any copy of the archives, nor allow the pub-
lication of any official document, without authorization of the
Department of State. The Department in general disapproves
of residence of the agent elsewhere than at the capital of the
receiving state.
(/) Joint action with the diplomatic agents of other powers
at a foreign court is deprecated, although conferences result-
ing in a conmion understanding in cases of emergency are
considered desirable.^
{g) It is permitted that the diplomatic agent of the United
States wear the uniform and bear the title of the rank attained
in the volunteer service of the Army of the United States during
the rebellion.^ It is prohibited by a later statute to wear " any
uniform or official costume not previously authorized by Con-
gress." • This has been interpreted as applying to dress de-
noting rank, but not to the prescribed court dress of certain
capitals ; ^ and " diplomatic officers are permitted to wear upon
occasions of ceremony the dress which local usage prescribes
as appropriate to the hour and place." *
(A) The United States has never been liberal in compen-
sating diplomatic agents for their services. In 1784 the salary
of the highest grade was fixed at nine thousand dollars, and
it has scarcely been doubled since that time. Other states of
equal dignity provide far more liberally for their representa-
tives.
1 Instructions to Diplomatic Officers, U. S., 1897, (§ 68, 69.
s U. S. Comp. Sts. § 3199. >4 Moore, § 654. « 4 Mooie, § 652.
» 4 U. S. Comp. Sts. § 1934. • U. S. Rev. Sts. § 1688.
» Schuyler, " Amer. Dip.," 144.
* Instructions to Diplomatic Officers, U. S., ( 67.
DIPLOMACY AND INTERNATIONAL RELATIONS 191
The whole matter of diplomatic agents has been the subject
of numerous statutes.^
82. Consuls
(a) Historically the office of consul preceded that of am-
bassador. The merchants of different states had dealings
with one another long before the states, as such,
entered into negotiations. The Egyptians, ap-
parently as early as the fourteenth century B.C., intrusted the
trial of certain maritime cases to a designated priest. The
Mediterranean merchants appealed to the jvdicium merca-
tarium et mariiimum in the sixth century B.C. The Greek
proxenos performed some consular functions. Rome later
had similar public servants. The consular system, however,
did not develop during the long period of decay of the Roman
Empire. In the days of the Crusades, the merchants settled
in the coast cities of the Mediterranean. Quarters of the cities
came practically under the jurisdiction of the foreign occupants.
The consuls, probably at first chosen by the merchants, exer-
cised this jurisdiction, imder which the law of the state of the
origin of the merchants was regarded as binding. Their func-
tions were somewhat similar to those exercised in some Eastern
states at the present time. As soon as conditions became more
settled, the states of the consuls gradually assumed control of
these consular offices. The laws of Oleron, Amalfi, Wisby, the
Consolato del Mare, and the early Lex Rhodia show that many
of the consular functions were recognized in and even before
the Middle Ages. The office of consul seems to have been
quite well established by the year 1200. The Hanseatic League
in the f oiuleenth century had magistrates in many cities entitled
aldermen, who were performing functions similar to those of the
consuls of the Mediterranean.^ England began to send consuls
> 4 U. S. Comp. Sts. §fi 3116-3212.
* Nys, " Les origiiies du droit international," " Le Commerce," p. 286.
192 INTERNATIONAL LAW
in the fifteenth century; the system rapidly spread, and the
powers and functions of consuls were wide. From this time, with
the growth of the practice of sending resident ambassadors, the
extent of the consular duties was gradually lessened. The
diplomatic functions formerly in the charge of the consuls were
intrusted to £he ambassadors, and other functions of the consuls
were reduced by making them the representatives of the business
interests of the subjects of the state in whose service they were,
rather than of the interests of the state as such.^ In Europe,
from the middle of the seventeenth century, when the responsi-
bility of states to each other became more fully recognized,
and government became more settled, the extraterritorial juris-
diction of consuls was no longer necessary. The growth of
commerce among the nations has increased the duties of the
consul. The improved means of conmiunication, telegraphic
and other, has relieved both consuls and ambassadors of the
responsibility of deciding, without advice from the home govern-
ment, many questions of serious nature.
(b) The rank of consuls is a matter of domestic law, and
each state may determine for its own officers the grade and
Rank of coniiils ^^^^^^ attaching thereto in the way of salutes,
a matter of precedence among its domestic officiab, etc.
ome c w. Thgjig jg jjQ international agreement in regard
to consuls similar to that of 1815-1818 in regard to diplomatic
agents.
The United States differentiates the classified consular service
into consuls-general, consuls, vice-consuls de carriire, consular
assistants and student interpreters. Other consular officers are
in the unclassified service. The full officers are consuls-general
and consuls. Consular agents and vice-consuls are subordinate
to the full officers. The former exercise functions at posts
other than those at which full officers are located, and the
latter exercise functions within the limits of a principal con-
1 Lawienoe, '* Commentaire sur Wheaton," IV, p. 6.
DIPLOMACY AND mTERNATIONAL RELATIONS 193
sulate, or as substitutes in the temporary absence of the full
officer.
Consuls-general ordinarily have a supervisory jurisdiction
of the consuls within the neighborhood of their consulate,
though sometimes they have no supervisory jurisdiction. Some
supervisorj'^ jmisdiction is often exercised by the diplomatic
agent accredited to the same state. Legislation of the United
States has provided for ** seven inspectors of consulates, to be
designated and commissioned as consuls-general at large "
to " make such inspections of consular offices as the Secretary
of State shall direct." " Each consular office shall be inspected
at least once in every two years."
Most states have consuls-general, consuls, vice-consuls,
consular agents, sometimes also consular students.
(c) The nomination of consuls is an attribute of a sovereign
state. They may be chosen either from among its own citi-
Hominatkni uid ^^^ ^^ tTom those of the foreign state. Consuls
raeeptkmof chosen from the citizens of the state to which
they are accredited exercise only in part the full
consular functions, the limit of the functions being determined
by the laws of the accrediting state and by the laws of the re-
ceiving state. Some states refuse to receive their own citizens
as consuls ; others do not accredit foreigners as consuls.
The commission or patent by which a consul-general or con-
sul is always appointed is transmitted to the diplomatic repre-
sentative of the appointing state in the state to which the con-
sul is sent, with the request that he apply to the proper authority
for an exeqiuxtur, by which the consul is officially recognized and
guaranteed such prerogatives and inmiunities as are attached
to his office. The vice-consul is usually appointed by patent,
though he may be nominated by his superior, and is recognized
by granting of an exeqiuUur. The exequatur may be revoked
for serious cause, though the more usual way is to ask the recall
of a consul who is not satisfactory to a state. The exequatur
194 INTERNATIONAL LAW
may be refused for cause. It is usually issued by the head of the
state. If the form of government in the receiving state or in
the accrediting state changes, it is customary to request a new
exequatur.
(form of)
FULL PRESIDENTIAL EXEQUATUR
President of the UnUed States of America.
To all to whom it may concern :
Satisfactory evidence having been exhibited to me
that
hajs been appointed
I do hereby recognize him as such, and declare him free to exercise and
enjoy such functions, powers, and privileges as are allowed to
In Testimony whereof, I have caused these Letters
to be made Patent, and the Seal of the United States
[sBAL to be hereunto affixed.
OF THE Given under my hand at the City of Washington
UNITED the day of , a.d. 19. ... ,
states] and of the Independence of the United States of
America, the
By the President,
Secretary of State
(i) The consul, as the oflBcer representing particularly the
commercial and business interests of the state from which
Varied functioii he comes, and in a minor degree the other indi-
of the consuls, vidual interests, has a great variety of functions.
His functions are in general such as affect only indirectly
the state in which he resides. He is not, like the diplomatic
agent, directly concerned with affairs of state; he has no
representative character, though in effect he is often the local
representative of the diplomatic agent accredited to the state.
The fimctions of a consul are largely matters determined by
DIPLOMACY AND INTERNATIONAL RELATIONS 195
custom, treaty stipulation, and by special provisions of bis
exeqiuUur. Witbin these limits domestic law of tbe accrediting
state determines tbe consul's functions. (1) In general tbe
consul bas many duties in connection witb tbe commercial
interests of tbe subjects of tbe state wbicb be serves. Tbese
duties extend botb to maritime and land commerce. Tbe
consul is to care tbat tbe provisions of conmiercial treaties are
observed, tbat proper invoices of goods are submitted, and tbat
shipment is in accord witb tbe regulations of tbe state wbicb be
serves. He is to furnish such reports in regard to commercial
and economic conditions as are required. Tbese reports often
involve many subjects only indirectly related to trade and com-
merce. (2) Tbe consul bas many duties relating to tbe mari-
time service of tbe state wbicb accredits him. This usually in-
cludes such supervision of merchant vessels as tbe domestic
law of bis state may grant to him, together with that accorded
by custom. His office is a place of deposit of a ship's papers
while the ship remains in port. When necessary he may super-
vise the shipment, wages, relief, transportation, and discbarge
of seamen, the reclaiming of deserters, tbe care of tbe effects of
deceased seamen, in some states the adjudication of disputes
between masters, officers, and crews, and if necessary he may
intervene in cases of mutiny or insubordination. In case of
wrecked vessels the consul is usually left considerable latitude
in his action. The consul may also authenticate the bill of
sale of a foreign vessel to the subject of tbe state which ac-
credits him. This authentication entitles tbe vessel to tbe pro-
tection of the consul's state. To the consul may also be in-
trusted other duties by treaties or by custom of given states.
(3) Tbe consul represerUs the interests of the citizens of the state
in whose service he is, in matters of authentication of acts under
seal, in administration of the property of citizens within his
district, in taking charge of effects of deceased citizens, in
arbitration of disputes voluntarily submitted to him, vis6 of
196 INTERNATIONAL LAW
passports, and minor services. (4) Theconsul/umitfAe^ to the
state which he represents information upon a great variety of
subjects particularly relating to commercial, economic, and
local political affairs, the conditions of navigation, and general
hydrographic information. Besides this he is expected to keep
his state informed of the events of interest transpiring within
his district.*
As Hall says : " In the performance of these and similar
duties the action of a consul is evidently not international.
He is an officer of his state to whom are entrusted special
functions which can be carried out in a foreign country with-
out interfering with its jurisdiction. His international action
does not extend beyond the unofficial employment of such in-
fluence as he may possess, through the fact of his being an official
and through his personal character, to assist compatriots who
may be in need of his help with the authorities of the country.
If he considers it necessary that formal representations shall be
made to its government as to treatment experienced by them or
other matters concerning them, the step ought in strictness to
be taken through the resident diplomatic agent of his state, —
he not having himself a recognized right to make such com-
munications." ^ In late years there has been in the consular
conventions between different states a tendency to extend to
consuls the right of complaint to the local authorities in case
" of any infraction of the treaties or conventions existing be-
tween the states," and " if the complaint should not be satis-
factorily redressed, the consular officer, in the absence of the
diplomatic agent of his country, may apply directly to the
government of the country where he resides." •
1 Stowell, E. C, Le Consul, p. 15. * Hall, p.^326.
' See Treaties: United States and Colombia (New Granada), 1860; United
States and France, 1863 ; United States and Austria, 1870 ; United States and
Germany, 1871; Austria and Portugal, 1873; Germany and Russia, 1874;
France and Russia, 1874 ; United States and Italy, 1878 ; Portugal and Belgium,
1880 ; United States and Sweden, 1910, and others.
DIPLOMACY AND INTERNATIONAL RELATIONS 197
{e) In some of the Eastern and non-Christian states consuls
have special powers and functions in addition to the ordinary
« . - powers and functions. The extent of the pow-
Spacial poww ,
iiiBiwtani ers varies, and is usually determined by treaty,
states. With the advance of civilization these special
functions are withdrawn, as by the Treaty of the United States
with Japan, November 22, 1894,* the jurisdiction of the con-
sular courts of the United States in Japan came to an end
July 17, 1899.
In general, in Mohammedan and non-Christian states, treaty
stipulations secure to the consuls of Western states the right
of exercising extensive criminal and civil jurisdiction in cases
involving citizens of their own and the Eastern states, or in
cases involving citizens of their own and other Western states.*
In some of the Eastern states the consuls have exclusive juris-
diction over all cases to which citizens of their states are parties ;'
in others the cases involving citizens of the Eastern and Western
states are tried in the court of the defendant in the presence of
the '* authorized official of the plaintiff's nationality," who may
enter protest if the proceedings are not in accord with justice,^
while in certain states and for some cases mixed courts are con-
stituted. Certain Western states in their domestic laws make
provisions for appeal from the decision of the consular court to
specified authorities, as to the diplomatic agent or to. some
domestic tribunal.
This jurisdiction is exceptional, furnishes no precedents for
international law, tends to become more restricted, and will
doubtiess gradually disappear.
(/) The privileges and inmiunities vary according to the
states and from the fact that a consul may be (1) a citis^en of
the state in which he exercises his consular functions, (2) a
> 29 U. 8. Sts. at Large, 848. * See § 66 for extent of jurisdiction.
* U. S. Treaty with Borneo, June 23, 1850, Art. IX, I Treaties, 130.
«U. 8. Treaty with China, Nov. 17. 1880, Art. IV. I TreaUes, 239.
198 INTERNATIONAL LAW
domiciled alien, (3) an alien engaged in business or some other
occupation in the state where he exercises his functions, or
PtiTUeges and (^) & citizen of the accrediting state engaged ex-
immunities. clusively upon consular business.^ It is, however,
necessary that the state which grants an exequatur to, or receives
as consul a person from, one of the first three classes, grant to
such person a measure of privilege and immunity consistent
with the free performance of his consular duties.
Each consul has the privilege of placing above the door of
his house the arms of the state which he serves, generally also
of flying its flag. The archives and official property are in-
violable.
In the case of a consul not a citizen of the receiving state
and engaged exclusively in consular business the following
exemptions are usually conceded by custom and often by treaty :
exemption from arrest except on a criminal charge, when he may
be pimished by local laws or sent home for trial ; exemption
from witness duty, though testimony may be taken in writing ;
exemption from taxation; exemption from military charges
and service. It is not, however, conceded that the consular
residence may be used as an asylum.
The consul of the third class, who, though an alien to the re-
ceiving state, engages in business other than consular duties,
is subject to all local laws governing similarly circumstanced
foreigners, except when in the performance of his functions.
His consular effects must be kept distinct from those apper-
taining to his business capacity, which last are under local law.
The domiciled alien exercising consular functions is subject
to local law as others similarly circumstanced, which, in some
states, may involve considerable obligations. The freedom
from local restrictions sufficient for the convenient perform-
ance of his consular duties is implied in the grant of the ex-
eqiuUur.
1 Lehr, 1 1236 ff.
DIPLOMACY AND INTERNATIONAL RELATIONS 199
The reception of a citizen of a state as a consular representa-
tive of a foreign state does not confer upon him the personal
privileges and immunities of any of the other classes, but only
the inmiunities attaching to the office itself, and absolutely
necessary for the performance of its duties, as the right to use the
arms above the office door, the inviolability of archives, and
respect for his authority while in the performance of his func-
tions.
In some of the Eastern states and in some of the non-Christian
and semicivilized states consuls are entirely exempt from local
jurisdiction, enjoying exemptions similar to those of diplomatic
agents.
In time of war the house of the consul is, when flying the
flag of the state which he serves, specially protected, and liable
to injury only in case of urgent military necessity. Consuls
do not necessarily withdraw because of hostilities with the ac-
crediting state.^
In general, the consul, by virtue of his public office, is en-
titled to more respect than a simple citizen, or, as Heffter puts
it, '^ consuls are entitled to that measure of inviolability which
will enable them to exercise their consular fimctions without
personal inconvenience." *
(g) The consular office may be vacated by a given occu-
pant, (1) by death, (2) by recall, (3) by expiration of his term
TemdnAtion of of service, (4) by revocation of his exequatur.
oonsiiiar office, rpj^jg \^^ cause is the only one needing attention.
The exequaJtur may be revoked by the state issuing it, if
the conduct of the holder be displeasing to the state. The
state issuing the exequatur is sole judge. This does not nec-
essarily imply any discourtesy to the accrediting state, as
the consul does not represent the sovereignty of the state.
It is customary, however, to give the accrediting state an
opportunity to recall its consul. Exequaturs have, on several
> " De Clerq et de Vallat.'* I. pp. 106. 107. « § 244.
200 INTERNATIONAL LAW
occasions, been withdrawn from consuls who have directly or
indirectly aided the enemies of the receiving state, or have
given offense by their participation in the public affairs of the
receiving state. Consequently consuls are usually officially
advised to refrain so far as possible from expressions of their
opinions upon public affairs, either of the receiving or sending
state.
(A) Formerly the United States consuls were usually changed
on the election of a new President. It was found that such a
policy was detrimental to the interests of the United States,
for often the four years of experience would be an excellent
preparation for subsequent service and a reason why the con-
sul should be retained rather than allowed to withdraw.
With a view to the promotion of the efficiency and per-
Appointment manency of the consular service, an Act of Con-
of conBiiis gpesg of April 5^ i9og^ njajg j|. practicable for
the President of the United States to extend to the consular
service the regulations governing selections under the civil
service laws. Since 1906, the American consular service has
tended to become, as in many states, a career.*
OUTLINE OF CHAPTER XIV
TREATIES
83. DKFUIiTiON OF A TREATT.
84. OTHER FORMS OF INTBRNATIONAL AGRBBMBNTS.
(a) Protocol.
{b) Dedaratioiis.
(c) Memonuida.
(tf) Letters and notai.
(e) Sponaioiis.
(f) CmrtelB.
(g) Comproniis.
85. THB NBGOTIATION OF TREATIES.
(a) The agreement upon the terms of the treaty.
(fi) The draft usuany of a uniform style.
(c) The signing of the treaty and its binding effect on the state
represented.
(d) Ratification, or acceptance of the treaty by the state.
(1) Refusal to ratify.
9) Exchange of ratifications.
(3) Approbation, adhesion, accession.
88. THE VALIDITY OF TREATIES.
(a) Parties to the treaty must have the international capacity to
contract.
(b) Agents of a state must be duly authorized.
(c) Freedom of consent necessary in armements between states.
(d) Treaties must be in conformity to law.
87. THE CLASSIFICATION OF TREATIES.
(a) Various methods of classification.
(b) Treaty of guaranty.
(c) Treaty of alliance.
88. THE INTERPRETATION OF TREATIES.
(a) Rules for interpretation.
(b) Cases of conflicting clauses.
(c) '' The most favored nation " clause.
201
89. THB TERMINATION OF TREATIES.
(a) By complete fulfillment of all tretty stipultttom.
(b) By the ezpiratiQn of the time agreed upon.
(c) By ezpress agreement of the parties concerned.
{d) Not effective when the execution of conditions is impossible or
contrary to the principles of law or morality.
(e) By renunciation of advantages and ri|^ts secured by a treaty.
(f) By a declaration of war.
(g) When the test of voidability sppiios.
(h) By act of denunciation.
202
CHAPTER XIV
TREATIES
83. Definition of a Treaty
A TREATT is an agreement, generally in writing, and always
in conf onnity with law, between two or more states or political
unities havmg state capacity. A treaty may establish, modify,
or terminate obligations. These obligations must be such as
are legally within the capacity of the states concerned to nego-
tiate. As distinguished from other forms of international
agreement, a treaty is usually concerned with matters of high
state importance, with a considerable number of questions, or
with matters involving several states.
Separate articles are clauses attached to a treaty after ratifi-
cation, and to be interpreted with reference to the whole.
84. Other Forms of International Agreements
Besides the treaty, which is the most formal international
agreement, there may be various other methods of expressing
the terms of international agreements. The importance of the
matter contained in the various documents is not necessarily
in proportion to their formality.
The terms " convention " and " treaty " are often used inter-
changeably, though strictly the scope of a convention is less
broad, and usually applies to some specific subject, as to the
regulation of commerce, navigation, consular service, postal
service, naturalization, extradition, boundaries, etc. The
terms below are often used loosely in practice.
203
204 INTERNATIONAL LAW
(a) A protocol, or procis verbcd, is usually in the form of
official minutes, giving the conclusions of an international
-_, , conference and signed at the end of each session
by the negotiators. This does not require rati-
fication by the sovereign as in the case of treaties and con-
ventions, though it may be binding upon the good faith of the
states concerned. Ordinarily the persons signing the protocol
have been duly authorized by their respective states in ad-
vance. The term " protocol " is sometimes applied to the
preliminary draft of an agreement between two or more
states as to the agreements entered into by negotiators in
preparation of a more formal document, such as a treaty or
convention.^
(6) Declarations are often documents containing recipro-
cal agreements of states, as in granting equal privileges in
^^ matters of trade marks, copyrights, etc., to the
citizens of each state. The term is used for
the documents, (1) which outline the policy or course of con-
duct which one or more states propose to pursue under certain
circumstances,* (2) which enunciate the principles adopted, or
(3) which set forth the reasons justifying a given act.
(c) The terms " memoranda " and " mgmoires " are used to
indicate the dociunents in which the principles entering an
international discussion are set forth, together
with the probable conclusions. These docu-
ments may be considered by the proper authorities, e.g. may
be sent to the foreign secretaries of the states concerned, and
contre-^mimoires may be submitted. These dociunents are
generally unsigned.
(d) Besides the above, there may be in diplomatic negotia-
tions letters between the agents, in which the use of the first
* For the protocol between the United States and Spain as to tenns of peace,
see 2 Treaties, 1688, 1605 ; 30 U. S. Sts. at Large, 1742.
* See Declaration of Paris, Appendix, p. zxzi.
TREATIES 205
or second person is common, and notes which are more formal
and usually in the third person. These letters, if made pub-
Letten and ^^> ^^^X hsLve much force, as in the case of the
■*•••• collective note of the powers conunonly called the
" Andrassy note," by which the Powers of Europe in 1875
held that in Turkey " reform must be adopted to put a stop
to a disastrous and bloody contest."
(«) When representatives of states not properly commis-
sioned for the purpose, or exceeding the limits of their authority,
enter into agreements, their acts are called treaties
8vb 9pe rail or aponnons. Such agreements re-
quire ratification by the state. This ratification may be ex-
plicit in the usual form, or tacit, when the state governs its
actions by the agreements.
(f) Of the nature of treaties are cartels, which are agree-
ments made between belligerents, usually mutual, regulating
intercourse during war. These may apply to
exchange of prisoners, postal and telegraphic
conununications, customs, and similar subjects. These docu-
ments are less formal than conventions, usually negotiated by
agents specially authorized, and do not require ratification,
though fully obligatory upon the states parties to the agree-
ment.^ Here also may be named the suspension of arms,
which the chief of an army or navy may enter into as an agree-
ment for the regulation or cessation of hostilities within a
limited area for a short time and for military ends. When
such agreements are for the cessation of hostilities in general,
or for a considerable time, they receive the name of armis-
tices or truces.* These are sometimes called conventions
with the enemy. These last do not imply international
negotiation.
1 Wheat D.. || 254. 344.
*Tbe armistice of November 11, 1018, between the allied and associated
Powers and Germany embodied many provisions usually reserved for the
treaty of peace.
206 INTERNATIONAL LAW
ig) The term " compromis " is now generally used for the
agreement by which, in a dispute to be presented to a court
of arbitration or international court, the issue is
denned, the time and manner of appointing the
arbitrators, the procedure, etc., are set forth.
Note. Agreements concluded between states and private
individuals or corporations have not an international character,
and do not come within the domain of international law. Such
agreements may include : —
1. Contracts with individuals or corporations for a loan, colon-
ization, developing a country, etc.
2. Agreements between princes in regard to succession, etc.
3. Concordats signed by the Pope as such and not as a secular
prince.
86. The Negotiation of Treaties
The negotiation of treaties includes, (a) the international
agreement upon the general terms, (6) the drafting of the terms,
(c) the signing, and (d) the ratification.
(a) The first step preparatory to the agreement is the sub-
mission of proof that the parties entering into the negotiations
-^ ^ are duly qualified and authorized.^ As the sov-
The agreement » ^
upon terms of ereigns themselves do not now m person negotiate
e treaty. treaties,^ it is customary for those who are to
conduct such negotiations to be authorized by a commission
generally known as fvU power. The negotiators first present
and exchange their /uH powers. They may be somewhat limited
in their action by instructions.* Often it is the diplomatic
representatives who negotiate with the proper authorities of
the state to which they are accredited. The negotiations are
sometimes written, sometimes verbal, and are preserved in
the proch verbaux. In case the negotiations are for any reason
> Butler, " Treaty-making Power," pp. 4 S.
* The Holy Allianoo of 1815 was signed by three sovereigna.
•See Sec. 76.
TREATIES 207
discontinued before the drafting of the terms of the agreement,
it is customary to state the circmnstances leading to this act
in a protocol signed by all the negotiators. Sometimes this
takes the name of a manifest or of a declaration.
(6) The draft of the treaty is usually, though not neces-
sarily, of a uniform style. Many early treaties opened with
draft *^ invocation to Deity. This is not the custom
Qsiudiyofa followed by the United States, however. The
**"" general form is to specify the sovereigns of the
contracting states, the purpose of the agreement, and the
names of the negotiators, with their powers. This constitutes
the preamble. Then follow in separate articles the agree-
ments entered into forming the body of the treaty, the con-
ditions of ratification, the number of copies, the place of the
negotiation, the signatures and seals of the negotiators. Some-
times other articles or declarations ^ are annexed or added, with
a view to defining, explaining, or limiting words or clauses used
in the body of the treaty. In setting forth conditions of ratifica-
tion, etc., the same formula is ordinarily followed as in the
portion of the main treaty subsequent to the body.
When several copies are signed, the order of the states parties
to the treaty, and of the agents negotiating it, varies in the dif-
ferent copies. The copy transmitted to a given state party
to the treaty contains the name of that state and of its agents
in the first place, so far as possible. Each negotiator signs in
the first place the copy of the treaty to be transmitted to his
own state, and if the agents of more than one other state sign
the treaty, they sign in alphabetical order of their states ac-
cording to the original language of the convention. This is
known as the principle of the alternat.
The following is the beginning and end of the Treaty of
Washington relative to the Alabama Claims, etc., including
the President's proclamation thereof :* —
> The Declaration of Paris, 1856, Appendix, p. zzxi.
> 17 U. S. Sts. at Large, 863 ; 1 TieatieB of U. S., 478.
208 INTERNATIONAL LAW
" BY THE PRESIDENT OF THE UNITED STATES OF
AMERICA
''A Proclabiation
"Whereas a treaty, between the United States of America
and her Majesty the Queen of the United Kingdom of Great
Britain and Ireland, concerning the settlement of all causes of
difference between the two countries, was concluded and signed
at Washington by the high commissioners and plenipotentiaries
of the respective governments on the eighth day of May last;
which treaty is word for word, as follows : —
"'The United States of America and her Britannic Majesty,
being desirous to provide for an amicable settlement of all causes
of difference between the two countries, have for that purpose
appointed their respective plenipotentiaries, that is to say: The
President of the United States has appointed, on the part of the
United States, as Commissioners in a Joint High Commission and
Plenipotentiaries [here follow the names]; and her Britannic
Majesty, on her part, has appointed as her High Conmiissioners
and Plenipotentiaries [here follow the names].
** ' And the said plenipotentiaries, after having exchanged their
full powers, which were found to be in due and proper form, have
agreed to and concluded the following articles : —
[Here follow 42 articles.]
Article XLIII
"'The present treaty shall be duly ratified by the President
of the United States of America, by and with the advice and con-
sent of the Senate thereof, and by her Britannic Majesty ; and the
ratifications shall be exchanged either at Washington or at London
within six months from the date hereof, or earlier if possible.
"*In faith whereof, we, the respective plenipotentiaries, have
signed this treaty and have hereunto affixed our seals.
" ' Done in duplicate at Washington the eighth day of May, in
the year of our Lord one thousand eight hundred and seventy-^ne/
[Here follow the scab and signatures.]
TREATIES 209
"And whereas the said treaty has been duly ratified on both
parts, and the respective ratifications of the same were exchanged
in the dty of London, on the seventeenth day of June, 1871, by
Robert C. Schenck, Envoy Extraordinary and Minister Pleni-
potentiary of the United States, and Earl Granville, her Majesty's
Principal Secretary of State for Foreign Affairs, on the part of
their respective governments :
"Now, therefore, be it known that I, Ulysses S. Grant, President
of the United States of America, have caused the said treaty to be
made public, to the end that the same, and every clause and article
thereof, may be observed and fulfilled with good faith by the
United States and the citizens thereof.
"In witness whereof, I have hereunto set my hand and caused
the seal of the United States to be affixed.
" Done at the City of Washington this fourth day of July, in the
year of our Lord one thousand eight hundred and seventy-one, and
of the Independence of the United States the ninety-sixth.
"U. S. GRiLNT.
By the President :
Hamilton Fish, Secretary of State.'
There is no diplomatic language, though various languages
have from time to time been more commonly used. In early
treaties and diplomatic works Latin was very common, and
it was used so late as the Treaty of Utrecht in 1713. Spanish
prevailed for some years toward the end of the fifteenth cen-
tury. From the days of Louis XIV, when the French par-
ticularly became the court language, it was widely used in
congresses and treaties. Frequently, when used, there was in-
serted in the treaties provision that the use of French should
not be taken as a precedent. During the nineteenth century
the use of French has been very common, as in the acts of the
Congress of Vienna, 1815 ; Aix-la-Chapelle, 1818 ; Paris, 1856 ;
Berlin, 1878 and 1885; Brussels, 1890. Even other states
of Europe, in making treaties with Asiatic and African states
210 INTERNATIONAL LAW
have agreed upon French or English as the authoritative text
for both states. In some of the treaties of the United States
and the Ottoman Porte, the French language was used.
In recent years English has come to be widely used in diplo-
matic intercourse. The English and French texts of the Treaty
of Versailles of June 28, 1919, were " both authentic " (Article
440) and both English and French were official languages at
the Conference on limitation of Armament, Washington,
1921-1922.
It is customary, when the treaty is between states having
different official languages, to arrange tor versions in both
languages in parallel colimins, placing at the left the version
in the language of the state to which the treaty is to be trans-
mitted.
(c) In signing the treaty each representative signs and seals
in the first place the copy to be sent to his own state. The
Signatores order of the other signatures may be by lot or
and seals. jj^ ^j^^ alphabetical order of the states represented.
The signing of the treaty indicates the completion of the
agreement between those conunissioned in behalf of the
states concerned. This does not irrevocably bind the states
which the signers represent, though the fact that its representa-
tive has signed a treaty is a reason for ratification which cannot
be set aside except for weighty cause. Signing is ad referendum
in case of many states where ratification by a legislative body,
as by the Senate in the United States, is required.
(d) Ratification is the acceptance by the state of the terms
of the treaty which has been agreed upon by its legally qualified
agent. The exchange of ratifications is usually
acceptance of provided for in a special clause, e,g, " The pres-
^e treaty by ^^^ treaty shall be ratified, and the ratifications
the state. "^
exchanged at ... as speedily as possible." By
this clause the state reserves to itself the right to examine
the conditions before entering into the agreement. At the
TREATIES 211
present time it is held that even when not expressed, the " re-
serve clause " is understood.
The ratification conforms to the domestic laws of each state.
Ordinarily it is in the form of an act duly signed and sealed by
the head of the state. In the act of ratification the text of the
treaty may be reproduced entire, or merely the title, preamble,
the first and last articles of the body of the treaty, the con-
cluding clauses following the last article, the date, and the names
of the plenipotentiaries.
In many states prior approval of the treaty by some legis-
lative body is necessary. In the United States the Constitution
provides that the President " shall have power by and with the
advice and consent of the Senate, to make treaties, provided
two-thirds of the Senators present concur." *
In the United States it has frequently happened that the
Senate has not approved of treaties, and they have therefore
failed of ratification. This was the fate of the Fishery Treaty
with Great Britain in 1888 and of the Treaty of Versailles of
1919.
The ratification may be refused for sufficient reason. Each
state must decide for itself what is sufficient reason. The
RefDMUto following have been offered at various times as
»tify. valid reasons for refusal of ratification : (1) Error
in points essential to the agreement, (2) the introduction
of matters of which the instructions of the plenipoten-
tiaries do not give them power to treat, (3) clauses con-
trary to the public law of either of the states, (4) a change
in the circumstances making the fulfillment of the stipulations
unreasonable, (5) the introduction of conditions impossible
of fulfillment, (6) the failure to meet the approval of the political
authority whose approval is necessary to give the treaty effect,
(7) the lack of proper credentials on the part of the negotiators
or the lack of freedom in negotiating.
* Art. II, § 2, 2.
212 INTERNATIONAL LAW
The exchange of ratifications is often a solemn, ue. highly
formal, ceremony by which parties to the treaty or convention
Szchange of guarantee to each other the execution of its terms,
ntificatioiis. As many copies of the act of ratification are
prepared by each state as there are states paities to the
treaty. When the representatives of the states assemble for
the exchange of ratifications, they submit them to each other.
These are carefully compared, and if found in correct form, they
make the exchange and draw up a procis verbal of the fact,
making as many copies of the prods verbal as there are parties
to the treaty. At this time also a date for putting into oper-
ation the provisions of the treaty may be fixed. Sometimes
clauses explanatory of words, phrases, etc., in the body of the
treaty are agreed upon. Such action usually takes the form of
a special procls verbal or protocol.
Unless there is a stipulation as to the time when a treaty
becomes effective, it is binding upon the signatory states from
the date of signing, provided it is subsequently ratified.
A state may assume a more or less close relation to the agree-
ments contained in treaties made by other states, by measures
. . ^ less formal than ratification.^ These measures
ApproDAtio&,
adhesion, are conmionly classed as acts of (1) approbation,
accession. ^^ which a state without becoming in any way
a party to the treaty assumes a favorable attitude toward its
provisions ; (2) adhesion, by which a state announces its in-
tention to abide by the principles of a given treaty without be-
coming party to it ; and (3) a>ccession, by which a state becomes
a party to a treaty which has already been agreed upon by other
states.
Note. After the completion of the negotiation it is customary
to promulgate and publish the treaty or convention. Both these
acts are matters of local rather than international law. The
> Roxburgh, International Conventions and Third States, p. 46.
TREATIES 213
promtdgaiion is the announcement by the chief of the state that the
treaty or convention has been made, and the pyblication is the
official announcement of the contents of the treaty or convention.
Seep. 208.
86. VaUdity of Treaties
Four conditions are very generally recognized as essential
to the validity of a treaty.
(a) The parties to the treaty must have the international
Four esMiitiai capacity to contract, i.e. ordinarily they must be
^oD^^^- ' states.
(6) The agents acting for the state must be duly author-
ized, i.e. the plenipotentiaries must act within their powers.
(c) There must be freedom of consent in the agreements be-
tween the states. This does not imply that force, as by war,
reprisals, or otherwise, may not be used in bringing about a
condition of affairs which may lead a state, without parting with
its independence, to make such sacrifices as may be necessary
to put an end thereto. No constraint can be put upon the
negotiators of the treaty by threats of personal violence, or in
any way to prohibit their free action, without invalidating their
acts. There is no freedom of consent when the agreement is
reached through fraud of either party, and treaties so ob-
tained are not valid.
(d) The treaties must be in conformity to law, as embodied
in the generally recognized principles of international law and
the established usage of states. States could not by treaty
appropriate the open sea, protect the slave trade, partition
other states, deprive subjects of essential rights of humanity,
or enter into other agreements that could not be internationally
obligatory.
87. Classification of Treaties
(a) Treaties have been variously classified, but the classifica-
tions serve no great purpose. The most common classification
214 INTERNATIONAL LAW
is clearly set forth by Calvo. As regards duration, treaties may
be (1) transitory, or (2) permanent or perpetual ; as regards
nature, (1) personal, relating to the sovereign,
methods of or (2) real, relating to things and not dependent on
* " the sovereign person ; as regards effects, (1) equal
or (2) unequal, or according to other effects, simple or con-
ditional, definitive or preliminary, principal or accessory, etc. ;
as regards objects, (1») general or (2) special.^ In a narrower
sense treaties may be divided into many classes, as political,
economic, guaranty, surety, neutrality, alliance, friendship,
boundary, cession, exchange, jurisdiction, extradition, com-
merce, navigation, peace, etc., and conventions relating to
property of various kinds, including literary and artistic, to
post and telegraph, etc. Most of these classes are sufficiently
described by their titles.
(6) A treaty of guaranty is an engagement by which a state
agrees to secure another in the possession of certain specified
Treaty of rights, as in the exercise of a certain form of
guaranty. government, in the free exercise of authority
within its dominions, in freedom from attack, in the free
navigation of specified rivers, in the exercise of neutral-
ity, etc. In 1831 and 1839, by the Treaties of London, the
independence and neutrality of Belgium were guaranteed,
and in the Treaty of 1832 the affairs in Greece were adjusted
under guaranty. The Treaty of Paris, 1856, guarantees " the
independence and the integrity of the Ottoman Empire."
The Anglo-Japanese treaty of 1902 constituted a mutual guaran-
tee in certain.Far Eastern affairs.^ When the guaranteeing state
is not only bound to use its best efforts to secure the fulfillment
of the treaty stipulations, but to make good the conditions
agreed upon in the treaty provided one of the principals fails
to meet its obligations, the treaty is not merely one of guaranty,
1 Calvo, §§ 643-^68.
> Terminated by Four Power Pact of December 13, 1921.
TREATIES 215
but also a treaty of surety. This sometimes happens in ease
of loans.^
(c) Agreements of states to act together for specific or gen-
eral objects constitute treaties of alliance. The nature of these
TtMtf of treaties of alliance varies with the terms. They
•^^^■'■^- may be defensive, offensive, equal, unequal,
general, special, permanent, temporary, etc., or may combine
several of these characteristics.
88. Interpretation of Treaties
Sometimes clauses interpreting treaties are discussed and
adopted by the states signing a treaty. These acts may take
the form of notes, protocols, declarations, etc. The dispatch
of the French ambassador at London, August 9, 1870, to the
foreign secretary interprets certain clauses of the treaty guaran-
teeing the neutrality of Belgium. In cases where no pre-
liminary agreement in regard to interpretation is made, there
are certain general principles of interpretation which are ordi-
narily accepted. Many treatises follow closely the chapters
of Grotius and Vattel upon this subject.*
(a) The rules usually accepted are : (1) Words of the treaty
are to be taken in the ordinary and reasonable sense, as when
Rules for elsewhere used under similar conditions. (2) If
inierpretmtiofi. the words have different meanings in the dif-
ferent states, the treaty should so far as possible be construed
so as to accord with the meaning of the words in the
states which accepted the conditions. (3) In default of
a plain meaning, the spirit of the treaty or a reasonable
meaning should prevail. (4) Unless the fundamental rights
of states are expressly the subject of the agreement, these
rights are not involved. (5) That which is clearly granted by
the treaty carries with it what is necessary for its realization.
> Wilson, Neutralization, 4 Yale Review, 474.
* Grotius, II, 16; Vattel. II, 17.
216 INTERNATIONAL LAW
(b) In the cases of conflicting clauses in a single treaty or
in case of conflicting treaties, the general rules are : (1) Special
Cases of con- clauses prevail against general clauses; pro-
flicting clauses, hibitory against permissive, unless the prohibitory
is general and the permissive special; of two prohibitory
clauses, the one more distinctly mandatory prevails; of
two similar obligatory clauses the state in whose favor the
obligation runs may choose which shall be observed. (2) In
case of conflict in treaties between the same states the later
prevails ; in case a later treaty with a third state conflicts with
an earlier treaty with other states, the earlier treaty prevails. ^
(c) *' The most favored nation '' clause is now common in
treaties of commercial nature. This clause ordinarily binds
"The most ^^® State to grant to its co-signer all the privi-
fsYorediu- leges similarly granted to all other states, and
such as shall be granted under subsequent treaties.
When privileges are granted by one state in exchange for privi-
leges granted by another, as in a reciprocal reduction in tariff
duties, a third state can lay claim to like reduction only upon
fulfillment of like conditions. Under " the most favored
nation " clause. Art. VIII, of the Treaty of 1803, between
France and the United States, France claimed that its ships
were entitled to all the privileges granted to any other nation
whether so granted in return for special concessions or not. This
position the United States refused to accept, and by Article VII
of the treaty of 1831 France renounced the claims.^
89. Termination of Treaties'
Treaties in general come to an end under the following con-
ditions : —
1 For the subject of interpretation, see Hall, p. 344 fiF. ; 2 PhUlimore, Pt.
V, Ch. VIII; Cfdvo. (§ 164&-1660; Pradier.Fod«r6, §§ 1171-1188.
* For discussion of the " most favored nation " clause, see 2 Whart., | 134,
also Appendix to Vol. Ill, p. 888 : J. R. Herod, " Favored Nation Treatment."
6 Moore. 257 ; CrandaU, § 172. * PhiUipeon. Treatieo.
TREATIES 217
(a) The complete fulfillment of all the treaty stipulations
terminates a treaty.
(b) The expiration of the limit of time for which the treaty
agreement was made puts an end to the treaty.
(c) A treaty may be terminated by express agreement of
the parties to it.
(d) When a treaty depends upon the execution of condi-
tions contrary to the principles of international law or morality
or impossible of performancci it is not effective.
(e) A state may renounce the advantages and rights se-
cured under a treaty, e.g. England renounced in 1864, the
protectorate of the Ionian Islands, which she had held since
1815.
(/) A declaration of war may put an end to those treaties
which have regard only to conditions of peaceful relations,
as treaties of alliance, commerce, navigation, etc., and may
suspend treaties which have regard to permanent conditions,
as treaties of cession, boundaries, etc. The treaty of peace
between China and Japan, May 8, 1895, Article 6, asserts
that, '' All treaties between Japan and China having come to an
end in consequence of the war, China engages, immediately
upon the exchange of ratifications of this act, to appoint pleni-
potentiaries to conclude, with the Japanese plenipotentiaries,
a treaty of commerce and navigation, and a convention to regu-
late frontier intercourse and trade." In the war between the
United States and Spain the royal decree issued by Spain, April
23, 1898, Article I, asserts that " The state of war existing be-
tween Spain and the United States terminates the treaty of
peace and friendship of the 27th October, 1795, the protocol of
the 12th January, 1877, and all other agreements, compacts,
and conventions that have been in force up to the present be-
tween the two countries." The declaration of war also gives
special effect to certain treaties and conventions, as to those in
regard to care of wounded, neutral commerce, etc.
218 INTERNATIONAL LAW
(g) A treaty is voidable when, (1) it is concluded in excess
of powers of contracting parties, (2) when it is concluded be-
cause of stress of force upon negotiators or because of fraud,
(3) when the conditions threaten the self-preservation of the
state or its necessary attributes. Hall gives as the test of
voidability the following : " Neither party to a contract can
make its binding effect dependent at his will upon conditions
other than those contemplated at the moment when the con-
tract was entered into, and on the other hand a contract
ceases to be binding so soon as anything which formed an
implied condition of its obligatory force at the time of its con-
clusion is essentially altered." ^ The condition rebiu sic stan-
tibus is always implied.^
(h) A treaty may be terminated by the simple act of de-
nunciation when this right of denunciation is specified in the
treaty itself, or when the treaty is of such a nature as to be
voidable by an act of one of the parties. " There can be no
question that the breach of a stipulation which is material
to the main object, or, if there are several, to one of the main
objects, liberates the party other than that conmiitting the
breach from the obligations of the contract ; but it would be
seldom that the infraction of an article which is either dis-
connected from the main object or is unimportant whether
originally or by change of circumstances, with respect to it,
could in fairness absolve the other party from performance of
bis share of the rest of the agreement, though if he had suffered
any appreciable harm through the breach he would have a
right to exact reparation, and end might be put to the treaty
as respects the subject-matter of the broken stipulation." *
1 HaU. p. 300. * Hooper, Adm*r v. United States, 22 Ct, CI. 406.
*HaU, p. 362.
OUTLINE OF CHAPTER XV
AMICABLE SETTLEMENT OF DISPUTES AND NON-
HOSTILE REDRESS
90. THE AMICABLE SETTLEMENT OF DISPUTES.
(a) By diplomatic negotiation.
(b) By the good offices of a third state.
(c) By the International Commission of Inquiiy.
(4) By conferences and congresses.
(«) By League of Nations.
(/) By arbitration.
(1) The Permanent Court of Arbitration at The Hague.
(g) By the Permanent Court of International Justice*
91. METHODS OF NON-HOSTILE REDRESS.
92. NON-mTERCOURSE AND BOYCOTT.
98. RETORSION.
94. REPRISALS.
96. EMBARGO.
96. PACIFIC BLOCKADE.
(a) Instances of pacific blockades.
(h) Present attitude toward pacific blockade.
220
CHAPTER XV
AMICABLE SETTLEMENT OF DISPUTES AND NON-
HOSTILE REDRESS
90. The Amicable Settlement of Disputes
N0TWITH8TANDINO the frequency of wars in recent years, it is
generally admitted that in the settlement of international dis-
putes war should be regarded as a last resort. Other means of
amicable settlement should be exhausted before any measures
of force are tried. Among these amicable means the most
common are diplomatic negotiations, the good offices or friendly
mediation of a third state, conferences and congresses, and
arbitration.^
(a) The settlement of disputes by diplomatic negotiation
By dipiomatie foUows the ordinary course of diplomatic busi-
aecotiatum. ness, whether committed to regular or special
agents. The larger number of disputed questions are settled
by diplomatic negotiation.
(b) In the case of disputes not easily settled by diplomatic
negotiations, a third state sometimes offers its good offices
Brtfa ood *® mediator. Its part is not to pass on a dis-
oiBcai of a puted question, but to devise a means of settle-
ment. The tender involves the least possible
interference in the dispute, and is regarded as a friendly act.
Either disputant may decline the tender without offense. One
of the disputants may request the tender of good offices or of
mediation. Ordinarily good offices extend only to the estab-
> Satow, d4 ; Higgins, Hague Peace Conferences.
221
222 INTERNATIONAL LAW
lishing of bases of, and the commencement of, the negotiations.
The more direct work of carrying on the negotiations is of the.
nature of mediation. The distinction between these is not
always made in practice. Either party may at any time
refuse the mediator's offices.
(c) The Hague Convention provides for an International
Commission of Inquiry to facilitate the solution of differences
which diplomacy has not settled " by elucidat-
DAtionAi Com- mg the facts by means of an impartial and con-
SlS?."' scientious investigation." " The Report of the
Commission is limited to a statement of facts,
and has in no way the character of an award. It leaves the
conflicting Powers entire freedom as to the effect to be given to
its statement." ^ The provision for this International Conmiis-
sion of Inquiry was put to the test at the time of the Russo-
Japanese war, 1904r-1905. A Russian fleet proceeding to the
East in the early morning of October 22, 1904, fired upon certain
British trawlers off the Dogger Banks in the North Sea. The
claim was made that the firing was due to the apprehension
that the vessels seen in the darkness were Japanese torpedo
boats. There was immediately widespread popular clamor in
Great Britain for war against Russia. Both states, however,
agreed to submit the matter to a Commission of Inquiry to
ascertain the facts. The majority of the commission found that
the firing was not justifiable.* Russia immediately paid com-
pensation. The Commission of Inquiry was also resorted to
by Holland and Germany in the case of the Dutch steamer,
Tvbantiaf sunk by a torpedo in 1916. The Commission found
that the torpedo was " launched by a German submarine."
The practicability of the International Commission of In-
quiry has become established. As to methods of procedure and
in certain other respects it was discovered that improvements
might be made in those of the Convention of' 1899. The Second
1 Appendix, p. xlviii. > U. S. For. Rei. 1905. p. 473.
AMICABLE SETTLEMENT OP DISPUTES 223
Peace Conference at The Hague in 1907 accordingly made the
necessary revision.^
(d) The settlement of questions liable to give rise to dis-
putes by conferences and congresses is common, and implies
a meeting of representatives of the interested parties for con-
sideration of the terms of istgreement upon which a question
By eonferencei ^^Y ^ adjudicated. The modem tendency is to
and congresses, provide for many international conferences. In
general, the conclusions of a congress are more formal and
are regarded as having more binding force than those of
a conference, though this distinction is not always made.
States not directly interested may participate in conferences
or congresses, and sometimes as mediators play a leading part.
(e) Since the ratification of the Treaty of Versailles, January
10, 1920, the Covenant of the League of Nations has become
binding on many states. Articles XI, XII and XIII of the
Qy League Covenant particularly provide for settlement
of Nations. ^f disputes, and since the League of Nations
came into existence many differences have been adjusted
through its instrumentality; the Aaland Islands controversy
was one of the first of these disputes.
{/) Arbitration involves an agreement between the dis-
putants to submit their differences to some person or persons
by whose decision they will abide. Arbitration
Bv arbitration.
n, arbitration. ^^ ^^ common from early times. In the
first Pan-American Conference in 1889 and subsequent similar
conferences, the principle of arbitration received earnest support.
The Convention for the Pacific Settlement of International Dis-
putes signed at the First Hague Peace Conference, July 29,
1899, provides that " The Signatory Powers undertake to or-
ganize a permanent Court of Arbitration, accessible at all times
. . . competent for all arbitration cases, unless the parties agree
to institute a speci9.1 Tribunal." It also provided for the general
^ Appendix, pp. zliv et seq.
224 INTERNATIONAL LAW
organization of the Court at The Hague, for the procedure, and
for an award without appeal, unless the right to revision be
reserved in the " Compromis." Other powers might adhere,
and any contracting power might withdraw its adherence one
year after notification. The United States gave its adherence
under reservation in regard to the Monroe Doctrine.
The Second Peace Conference at The Hague in 1907, desirous
''of insuring the better working in practice of Commissions of
Inquiry and Tribunals of Arbitration, and of facilitating re-
course to arbitration in cases which allow of a sununary pro-
cedure," concluded, October 18, 1907, a new Convention for the
Pacific Settlement of International Disputes.^
The Hague Court met with increasing favor after 1902,
when the United States and Mexico submitted to it the first
case relating to the Pious Fund, and many cases have followed.'
(1) The Permanent Court of Arbitration at The Hague has
competence for all arbitration cases.
(2) It is constituted by the selection by each contracting
power for a period of six years of four persons, at most. All
-. „ ^ of these are inscribed as members of the court.
The Pemuuieiit
Court of From this list of " Arbitrators " the states par-
^" ties to a controversy must choose. Failing to
agree on the constitution of the court, each party chooses two
arbitrators, and these together choose an umpire, or failing this,
a selected third power names the umpire, or two powers named
by the parties make the choice, and to the arbitrators the com-
promts defining the case is submitted.
(3) The procedure if not determined in advance by the
parties is prescribed in the Convention. There may be " writ-
ten pleadings and oral discussions.'' Great freedom is allowed
in securing the fullest presentation of each case.
(4) The decision of the tribunal is by a majority vote, and
the award " must give the reasons on which it is based."
> Appendix IV, pp. zli et mq. * Wilnon, " Hague ArbitmtioQ Qftses, " p. 1.
AMICABLE SETTLEMENT OF DISPUTES 225
(5) The publication of the award is in public sitting.
(6) Demand for revision of the award on the basis of the dis-
covery of some new fact can be made if the right has been
reserved in the compromis}
Since the Hague Conference of 1907 many states have
negotiated special arbitration treaties, and certain states have
agreed to leave all disputes which arise between them to arbi-
tral adjudication.
Of the leading cases of arbitration during the nineteenth
century, the decision in one case was rejected by both par-
ties to the dispute,* and in one case rejected by one of the
parties.' In several other' instances one party has refused
to submit to arbitration questions readily lending them-
selves to such settlement, even though requested by the other
party. Nineteenth-century arbitration cases numbered sev-
eral hundred, and there have been a large number of cases since
1900.
(g) Provision " for the establishment of a Permanent Court
of International Justice " was made in Article XIV of the
League of Nations Covenant of the Treaty of Versailles, June
28, 1919.* " The Statute of the Permanent Court of Inter-
national Justice " was approved by the Assembly of the League
„ _ of Nations, December 13, 1920.* The Court
Court of Inter- was to consist of fifteen members, eleven judges
nftftio Justice. ^^^ j^^^ deputy-judges elected by the Assembly
and Council of the League of Nations for nine years. The
Court met for organization at The Hague, January 30, 1922, and
the first decision was rendered, July 31, 1922, on the validity
of the nomination, under article 389 of the Treatv of Ver-
sailles, of a delegate to the international labor conference.
> For text of Convention, see Ap]3endix, p. xli.
* See. on this entire subject, Moore's " International Arbitration " ; Holls's
" Hague Peace Conference," 176-305 ; and for this case between the United
States and Great Britain, 1 Moore, " Arbitrations," 137.
* 2 Moore, " Arbitrations/' 1749. * Appendix, cxiv. * Appendix, cxxiL
226 INTERNATIONAL LAW
91. Methods of Non-hostUe Redress
Good offices, mediation, arbitration and judicial procedure
are not always acceptable to both parties. Consequently
certain other practices have arisen with the view of obtaining
satisfaction by measures short of war. Sometimes there may
be resort to non-intercourse or to a boycott. Formerly an
individual might be commissioned by a letter of marque
and reprisal to obtain satisfaction from a state for injuries
which he had suffered. This practice is, however, discon-
tinued, and sat^action must be obtained through the proper
state channels. There may be a simple display of force,
though the usual means are classed as non-intercourse re-
torsions, reprisals, of which embargo is an important variety,
and pacific blockades.
92. Non-intercourse and Boycott
The resort to non-intercourse as a method of putting pressure
upon a state has been common. The non-importation and non-
intercourse acts of the early nineteenth century are examples
of such measures short of war. In recent years propositions
have been made to extend the idea of non-intercourse so that
by international agreement, as by Article XVI of the Covenant
of the League of Nations, an offending state shall be entirely
isolated as regards international trade and other contact.^
Non-intercourse measures have met with varying degrees
of success depending upon the conditions of the parties con-
cerned.
The boycott, generally involving refusal by nationals of one
state to deal in any way with the nationals of another state, has
sometimes been effective in bringing a state to settle differences
which diplomacy did not speedily adjust. This has been par-
ticularly illustrated in Chino-Japanese relations of recent years.
* Appendix, p. oxvi.
AMICABLE SETTLEMENT OP DISPUTES 227
93. Retorsion
Retorsion is a species of retaliation in kind.^ Retorsion
may not consist in acts precisely identical with those which have
given offense, though it is held that the acts should be analogous.
The offense in consequence of which measures of retorsion are
taken may be an act entirely legitimate and desirable from the
point of view of the offending state. Another state may, how-
ever, consider the act as discourteous, injurious, discriminating,
or unduly severe. In recent years commercial retorsion has
become a very important means of retaliation which, bearing
heavily upon modern communities, may lead to a speedy settle-
ment of dif&culties. The tariff wars of recent years show the
effectiveness of commercial retorsion, e.g. the measures in con-
sequence of the tariff disagreements between France and Swit-
zerland in 1892. These measures of retorsion should always be
within the bounds of municipal and international law.
94. Reprisals
Reprisals are acts of a state performed with 'a view to ob-
taining redress for injuries. The injuries leading to reprisals
may be either to the state or to a citizen, and the acts of re-
prisal may fall upon the offending state or upon its citizens either
in goods or person. The general range of acts of reprisal may
be by (1) the seizure and confiscation of public property or
private property,^ and (2) the restraint of intercourse, political,
commercial, or general. In extreme cases, acts of violence upon
persons belonging to one state, when in a foreign state, have led
to similar acts, upon the part of the state whose subjects are
injured, against the subjects of the foreign state. This prac-
tice is looked upon with disfavor, though it might be sanctioned
by extremest necessity. In consequence of the arrest by Mex-
1 Pradier-Fod6i«, 2634-2636.
^ For the rules in regard to the collection of contract debts, see Sec. 101 (c),
p. 240.
228 INTERNATIONAL LAW
ican authorities of two American seamen at Tampico in 1914
Congress authorized the employment of American forces dis-
claiming " any purpose to make war on Mexico." * Acts of re-
taliation for the sake of revenge are generally discountenanced.
Reprisals in time of peace here mentioned are distinct from re-
prisals by belligerents.
96. Embaigo
Embargo consists in the detention of ships and goods which
are within the ports of the state resorting to this means of
reprisal. It may be (1) civil or pacific embargo, the detention
of its own ships, as by the act of the United States Congress in
1807, to avoid risk on account of the Berlin Decree of Napoleon,
1806, and the British Orders in Council, 1807 ; or (2) hostile,
the detention of the goods and ships of another state. It was
formerly the custom to detain within the ports of a given state
the ships of the state upon which it desired to make reprisals,
and if the relations between the states led to war to confiscate
such ships. Hostile embargo may no^^ be said to be looked upon
with disfavor, and a contrary policy is generally adopted, by
which merchant vessels may be allowed a certain time in which
to load and depart even after the outbreak of hostilities. By
the proclamation of the President of the United States de-
claring that war with Spain had existed since April 21, 1898,
thirty days were allowed and Spain, by the royal decree of
April 23, 1898, allowed five days.^
The Hague Convention of 1907 relative to the Status of
Enemy Merchant Ships at the Outbreak of Hostilities, while
not fixing the number of days of grace, stated that " it is de-
sirable that it should be allowed to depart freely, either imme-
diately or after a reasonable number of days of grace, and to
proceed, after being furnished with a pass, direct to its port of
> 38 SU. at Large, 1770. * Proclamations and Decrees, p. 93.
AMICABLE SETTLEMENT OF DISPUTES 229
destination or any other port indicated." ^ At the outbreak
of the World War, Great Britain granted in some cases ten days
of grace, France seven days, and Italy and some other states
granted no days of grace.'
An embargo of somewhat diiBFerent character was provided
for in American legislation of March 14, 1912, and January 31,
1922, by which the President of the United States was author-
ized to prohibit the export of arms or munitions to certain
countries where a condition of domestic violence existed.'
96. Pacific Blockade
Pacific blockade is a form of reprisal or constraint which
consists in the blockading by one or more states of certain
ports of another state without declaring or making war upon
that state. In the conduct of such blockades practice has varied '
greatly. In general, however, the vessels of states not parties
to the blockade are not subject to seizure. Such vessels may
be visited by a ship of 'the blockading ^squadron Jn order to /
obtain proof of identity. Whether vessels under foreign flags
are liable to other inconveniences or to any penalties is not de-
fined by practice or opinion of text writers. " The Institute
of International Iaw,** in 18S7, provided that pacific blockade
should be effective against the vessels of the blockaded party
only. This position seemed to be one which could be generally
accepted. From the nature of pacific blockade as a measure
short of war, its consequences should be confined only to the
parties concerned. The pacific blockade of Greece in 1886 ex-
tended only to vessels fiying the Greek fiag,* but the admirals
of the Great Powers in the pacific blockade of Crete in 1897
endeavored to establish the right to control other than Greek
vessels if they carried merchandise for the Greek troops or for
1 Appendix, p. Izzvi. > N. W. C. 1915, p. 16.
•See ante, p. 65. *Parl. Papers, Greece, No. 4, 1886.
230 INTERNATIONAL LAW
the interior of the island. As no case arose to test the claim, this
question cannot be regarded as settled.
The provisions of the pacific blockade of Crete in 1897 were
as follows : —
"The blockade will be general for all ships under the Greek flag.
" Ships of the six powers or neutral may enter into the ports
occupied by the powers and land their merchandise, but only if it
is not for the Greek troops or the interior of the island. These
ships may be visited by the ships of the international fleets.
" The limits of the blockade are comprised between 23° 24' and
26'' 30' longitude east of Greenwich, and 35'' 48' and 34'' 45'
north latitude." ^
The Secretary of State of the United States, in acknowl-
edging the receipt of the notification of the action of the powers,
said : " I confine myself to taking note of the conmiunication,
not conceding the right to make such a blockade as that re-
ferred to in your communication, and reserving the consideration
of all international rights and of any question which may in any
way affect the commerce or interests of the United States." * The
weight of authority supports the position of the United States.
(a) The first attempt to establish a blockade without re-
sorting to war was in 1827, when Great Britain, France, and
Instance! of Russia blockaded the coasts of Greece with a
pacific view to putting pressure upon the Sultan, its
nominal ruler. Since that time there have been
pacific blockades varying in nature: blockade of the Tagus
by France, 1831 ; New Granada by England, 1836 ; Mexico by
France, 1838; La Plata by France, 1838 to 1840; La Plata
by France and England, 1845 to 1848; Greece by England,
1850; Formosa by France, 1884; Greece by Great Britain,
Germany, Austria, Italy, and Russia, 1886; Zanzibar by
Portugal, 1888; Crete by Great Britain, Germany, Austria,
» The London Gazette, March 19, 1897. « U, 8. For. Bel. 1897, p. 255.
AMICABLE SETTLEMENT OP DISPUTES 231
France, Italy, and Russia, 1897; and Venezuela by Great
Britain, Germany and Italy, 1902. This blockade of 1902
was at first announced as a pacific blockade, and when third
states raised objection was transformed into a war blockade.^
(b) From these instances it may be deduced (1) that pacific
blockade is a legitimate means of constraint short of war,
Ptesent atti- ^^^ ^^^^ those states parties to the blockade are
tade toward pa- bound by its consequcnces, (3) that as a matter
of policy it may be advisable to resort to pacific
blockade in order to avoid the more serious resort to war, and
(4) that states not parties to the pacific blockade are in no way
bound to observe it, though their ships cannot complain be*
cause they are required to establish their identity in the ordin-
ary manner. These conclusions seem to be in harmony with
the spirit of the Hague conventions limiting the effect of hostil-
ities to the period of the war subsequent to a declaration. To
determine the nationality of a ship the so-called " right of ap-
proach " may be exercised.
1 U. S. For. Rel. 1903, pp. 417 ff.
PART FOUR
INTERNATIONAL LAW OF WAR
OUTLINE OF CHAPTER XVI
WAR
97. DEFmmON OF WAR.
98. LAWS OF WAR.
(a) Development of rules.
(5) Sanctions for Uws of war.
99. COMMENCEBIBNT OF WAR.
(a) Satoricai practice.
(5) Rules of the Hague Conference.
(c) Civil war.
100. DECLARATION AND NOTIFICATION OF WAR.
(a) Sstorical practice.
(5) Provisions of the Hague Conference.
(c) Practice in Worid War.
101. OBJECT OF WAR.
(a) From the political point of view.
(b) From the military point of view.
(c) Limitation by the Hague Conference.
102. GENERAL EFFECTS OF WAR.
(a) The general and immediate effects.
(1) To suspend all non-hostile intercourse between die
states.
(2) To suspend all the ordinary non-hostile intercourse
between the citizens of the states.
(8) To introduce new principles in intercourse with other
states.
(4) To abrogate or suspend certain treaties.
(b) The Hague Convention with respect to the Laws and Customs
of War on Land.
(c) Reprisals and retaliation.
234
CHAPTER XVI
WAR
97. Definition of War
War is the relation which exists between states or between
political entities when there may lawfully be what Crentilis in
1588 defined as " a properly conducted contest of armed public
forces." ^ The nature of such contests varied with circum-
stances, and wars were, accordingly, classified by early writers
as public, private, mixed, etc., distinctions that now have little
more than historical value.* Wars are now sometimes classified
as international and civil.
98. Laws of War
(a) The laws of war differ as applied to war on land, at sea,
or in the air. The laws of land warfare have become most de-
fined owing to long usage.' The laws of war on and under the
sea are less developed, and the laws of aerial warfare are least
elaborated. For land warfare customs have grown up and
Dereiopmont taken form in laws and codes of which one of the
ofndM. b^g^ known is Lieber's Code, General Order
No. 100 of the Army of the United States of 1863.' There
have been many attempts to formulate the law for war on
the sea. Some of these were embodied in the Hague Con-
ventions of 1899 and 1907 and in the Declaration of London
of 1909. Until the World War the basis of proposed laws for
aerial warfare was largely upon analogy or conjectiu*al, owing to
^ " De Jure Belli," I, ii, " Bellum est publioonim armorum justa contentio " ;
Instr. U. S. Annies, 1 20, Appendix, p. v.
* Halleck, Ch. XVI ; Calvo, | 1866 ff. • Appendix, p. i.
235
236 INTERNATIONAL LAW
the lack of knowledge of the possible use of aircraft in war.^
Balloons had been used for many years but mainly for obser-
vation purposes. With the twentieth century development of
dirigibles and heavier than air craft of many kinds rules became
necessary.
(6) Even though in some respects rules or laws of war had
been quite fully developed, the lack of effective sanction has
always been felt. Public opinion has not always been an ade-
quate sanction, and the strong state had often acted on the
Sanctioiis f or inference that "might makes right." Retalia-
1 Uwt of wu. ^Qu by the other belligerent is a possible deter-
rent. Hague Convention IV of 1907 provides in Article 3
that the offender against the law shall be "liable to pay
compensation " and that the belligerent party " shall be re-
sponsible for all acts conunitted by persons forming part of its
armed forces." The Treaty of Versailles by Articles 227-230
endeavored to place responsibility upon William II of Hohen-
zollem and other persons for the World War.
99. Commencement of War
It is now assmned that peace is the normal relation of states.'
When these relations become strained, it is customary for one
or both of the states to indicate this condition by discontinuing
some of the means of peaceful intercommunication, or by some
act short of war. The withdrawal of a diplomatic representa-
tive, an embargo, or any similar action does not mark the com-
mencement of war.
(a) War formerly commenced with the first act of hostili-
ties, unless a declaration fixed an earlier date, and in case of a
declaration subsequent to the first act of hostilities, war dated
from the first act. A proclamation of the blockade of Cuban
» SpRight, •• Aircraft in War."
* The United States wars of the nineteenth century were : June, 1812-Feb.,
1815; March, 1846-Feb., 1848; April, 1861-April, 1865; April, ISOS-August,
1898; of the twentieth, April, igi7-July, 1921 (Armistice Nov. 11. 1918).
WAR 237
ports preceded the declaration of war between Spain and the
United States in 1898.^ Similarly, hostilities were begun
Hifioricfli before the declaration of war between China
vnt^^ and Japan in 1894,^ and between Russia and
Japan in 1904. Indeed, few of the wars between 1700
and 1914 were actually declared before the outbreak of
hostilities, and many were not even declared formally at all.'
In the World War from 1914 prior declaration was the rule.
(6) The present rules m regard to the conunencement of
war as agreed upon at The Hague in 1907 provide that hos-
tilities between the contracting parties "must
Hagne not Commence without previous and explicit
«•»*•• warning, in the form either of a reasoned dec-
laration of war or of an ultimatimi with conditional declaration
of war."
(c) Civil war naturally is not preceded by a declaration, but
exists from the time of the recognition of the beUigerency by an
outside state, or from the date when the parent
state engages m some act of war agamst the
insiu*gent party/ In the case of the Civil War in the
United States, the proclamation of blockade of the Southern
ports by President Lincoln was held to be sufficient acknowl-
edgment of a state of war.
100. Dedaration and Notification of War
(a)' In ancient times wars between states were entered upon
with great formality. A herald whose person was inviolate
mgioricfti brought the challenge, or formal declaration,
•"*^'**' which received reply with due formality. At
the beginning of the eighteenth century this practice had
become unusual, and in the days of Vattel (1714-1767) the
theory of the necessity of a formal declaration was set aside.
^ 30 XJ. 8. 8t8. at Large, 1769, 1776. * Takahashi, Chino-Japanese. 42 et nq.
s N. W. C. 1910, p. 45. * Prise Caaee, 2 Black, U. S. 636.
238 INTERNATIONAL LAW
It was, however, maintained that a proclamation or manifesto
should be issued for the information of the subjects of the states
parties to the war, and for the information of neutrals. The
practice of public notification became general, and was usually
regarded as obligatory.
Providont of ^^^ ^^ ^^^ ^^ Hague Convention relative
tfaeHasao to the Opening of Hostilities provided as
•renco. to (1) declaration or ultimatum, and as to (2)
notification : —
"Article I. The contracting powers recognize that hostili-
ties between themselves must not commence without previous
and explicit warning, in the form either of a reasoned decla-
ration of war or of an ultimatum with conditional declaration of
war."
"Abt. II. The exbtence of a state of war must be notified to
the neutral powers without delay, and shall not take effect in re-
gard to them until after the receipt of a notification, which may,
however, be given by telegraph. Neutral powers, nevertheless,
cannot rely on the absence of notification if it is clearly es-
tablished that they were in fact aware of the existence of a state
of war."
Such requirements are reasonable in view of the changes
which a state of war brings about in the relations of the
parties concerned, and of neutrals. The declarations usu-
ally specify the date from which the war begins, and *hence
have weight in determining the nature of acts prior to the
declaration, as the legal effects of war depend on the decla-
ration.
The constitution of a state, written or unwritten, deter-
mines in what hands the right to declare war shall rest, e.g. in
the United States, in Congress.
Of the fifty and more declarations of war in the World War,
many specified the hour and minute at which war would exist.
WAR 239
Ultimatums were common and nearly all were "reasoned.'*
Austria declared war against Serbia at noon, July 28, 1914,
PtMtice in ^^ ^^ ground of an unsatisfactory reply to the
World Wit. Austrian ultimatum. France informed other
Powers that by Grerman declaration " a state of war exists
between France and Grermany dating from 6.45 p.m. on August
3, 1914." 1
101. Object of War
The object of war may be considered from two points of
view, the political and the military. International law cannot
F^om the determine the limits of just objects for which a
point state may engage in war.
(a) Politically the objects have covered a wide
range, though there is a growing tendency to limit the
nimiber of objects for which a state may go to war. It is
generally held that self-preservation is a proper object, but
as each state must decide for itself what threatens its existence
and well-being, even this object may be very broadly interpreted,
e.g. in 1914, Austria-Hungary against Serbia, " to bring to an
end the subversive intrigues . . . aimed at the territorial
integrity of the Austro-Hungarian Monarchy " ; United States
against Grermany, because Germany " has conmoitted repeated
acts of war against the Grovemment and the people of the
United States." History shows that it has not been difficult
from the political point of view to find an object of war when the
inclination was present in the state. The nominal are often not
the real objects, and the changing conditions during the progress
of the war may make the final objects quite different from the
initial objects. The simple cost of carrying on hostilities some-
times changes the conditions upon which peace can be made.
The classification of causes and objects formerly made has little
weight in determining whether a state will enter upon war.
> For declaratioiiB, etc., see N. W. C. 1917, p. U
240 INTERNATIONAL LAW
The questions of policy and conformity to current standards
are the main ones at the present time.
(6) The object of war in the military sense '' is a renewed
state of peace/' ^ or as stated in the English manual, " to pro-
Py^^^ cure the complete submission of the enemy at
military potnt the earliest possible period with the least possible
^"^•^^ expenditure of men and money." The "In-
stitute of International Law/' Oxford session of 1880, gave as
a general principle that the only legitimate end that a state may
have in war is to weaken the military strength of the enemy.
In general the ultimate object of war is to establish a permanent
peace. The means naturally accord with that end and must
under present regulations be humane.
(c) The Hague Conference of 1907 endeavored to remove
Limitation by ^^'^ ®' ^® frequent objects of war by limiting
the Hague by convention the employment of force for the
recovery of contract debts as follows : —
"Article I. The Contracting Powcfrs agree not to have le-
course to armed force for the recovery of contract debts claimed
from the Government of one country by the Government of another
country as being due to its nationals.
"This undertaking is, however, not applicable when the debtor
State refuses or neglects to reply to an offer of arbitration, or,
after accepting the offer, prevents any 'Compromis' from being
agreed on, or, after the arbitration, fails to submit to the award." *
102. General Effects of War
(a) The general and immediate effects of war are : —
(1) To suspend all nonhostile intercourse between the
The general States parties to the war. (2) To suspend the
and immediate ordinary nonhostile intercourse between the citi-
zens of the states parties to the war.
^ InBt. U. S. Armies, § 29 ; Appendix, p. vii.
« 2 Treaties, 2248. This Convention introduces a modified form of the " Drago
Poctrine," for statement of which see U. S. For. Rel. 1903, p. 1.
WAR 241
(3) To introduce new principles in the intercourse of the
states parties to the war with third states. These impose new
duties upon neutrals and allies.
(4) To abrogate or suspend certain treaties : —
(a) To abrogate those treaties which can have force
only in time of peace, e,g, of alliance, establishing subsidies, etc.
(6) To suspend those treaties which are permanent
and naturally revive at the end of the war, e.g. of naturalization,
public debts, etc.
(c) To bring into operation treaties concerning the
conduct of hostilities.
(6) The Convention with Respect to the Laws and Customs
of War on Liand, signed at The Hague on October
the Laws uid° 18, 1907, a multilateral convention, in- a measure
^ttomsof supplants all other codifications and rules upon
this subject. In cases for which the Convention
provides, the signatory powers are thereby bound ;
"in cases not included in the Regulations adopted by them the
inhabitants and the belligerents remain under the protection and
the rule of the principles of international law as they result from
the usages established among civilized peoples, from the laws of
humanity, and the dictates of the public conscience/' ^
The provisions are to become binding upon the contracting
states, and are to be made the regulations for their armed land
forces. Non-signatory states may adhere to the Convention
upon giving proper notification.^ This Convention has been
so widely adopted that it may be said to be generally binding
for the subjects of which it treats.' Other Hague Conventions
cover certain aspects of war on land and sea. Earlier codes
and orders must be consulted for subjects not contained in the
Hague Conventions.*
> Preliminary Declaration, Appendix, p. Ixi. * Ihid,^ Appendix, p. bdi.
* Liat of Signatory States, Appendix, p. xli. * See Appendices.
242 INTERNATIONAL LAW
(c) During the Worid War many acts were committed by the
parties on the ground of reprisals or retaliation. It was argued
Reprisal and ^*^ deliberate violation of accepted rules of war-
retaiiatioii. fare should not determine the contest in favor of
the offending party and that "a reckless enemy often leaves
his opponent no other means of securing himself against
the repetition of barbarous outrage/' ^ Reprisals and retali-
ation are not within the scope of international law proper,
but are acts undertaken to prevent further violation of inter-
national law and have been caUed measures of " protective
retribution." Reprisals and retaUation are ultimate sanctions
for the observance of the laws of war.
^ Ixwtructions, 27, Appendix, p. vi.
OUTLINE OF CHAPTER XVH
STATTTS OF PERSONS IN WAR
108. PERSONS AFFECTED BT WAR.
(a) Subjects of enemy states.
(b) Subjects of neutral states.
(c) Combatants and noncombatants.
104. COMBATANTS.
(a) Status of combatants allowed to two classes engaging in de-
fensive hostilities.
(5) Status of combatants not allowable for those engaging in ag-
gressive hostilities without state authorization.
106. NONCOMBATANTS.
(a) Status of noncombatants within a territory under control ci an
enemy.
(5) Status of subjects of one belligerent state within the juris-
diction of the other.
:M4
CHAPTER XVn
STATUS OF PERSONS IN WAR
103. Persons Affected by War
(a) Bt the strict theory of war the svbjeds of enemy states
are enemies.^ The treatment of the subjects of enemy states
is not, however, determined by the allegiance alone, but by
conduct, by relations, and by domicile of the subject.
(6) The subjects of netUral states are affected by their rela-
tions to the hostile states as established by their own govern-
ment, as determined by their conduct, and as determined by
their domicile.
(c) By conduct persons are divided into combatanis and
noncombdtarUs, according as they do or do not participate in
the hostilities. The status of such persons may be further mod-
ified by domicile or by political allegiance.
101. Combatants
Combatants in the full sense are the regularly authorized
military and naval forces of the states. They are liable to
the risks and entitled to the immunities of warfare, and if cap-
tured become prisoners of war.
The Hague Convention of 1907 respecting the Laws and
Customs of War on Land, which was a revision of that of 1899,
provided that :
"Article I. The laws, rights, and duties of war apply not
only to armies, but also to militia and volunteer corps fulfilling
the following conditions : —
"1. To be commanded by a person re^nsible for his sub-
ordinates ;
> iDstr. U. 8. Armies, §§ 20, 21, 22 ; Appendix, pp. v, vi.
245
246 INTERNATIONAL LAW
"2. To have a fixed distinctive emblem recognizable at a dis-
tance;
"3. To carry arms openly ; and
"4. To conduct their operations in accordance with the laws
and customs of war.
''In countries where militia or volunteer corps constitute the
army, or fdrm part of it, they are included under the denomina-
tion'army.'"*
(a) The status of combatants is also allowed to two classes
which engage in defensive hostilities : —
(1) The officers and crew of a merchant vessel of an enemy
which defends itself by force are liable to capture as prisoners
of war.
(2) With regard to levies en masse much difference of opinion
existed. Article 10 of the Declaration of Brussels, 1874, was
adopted at the Hague Conferences in 1899 and 1907, and may be
considered as representing a generally accepted position, namely,
" The population of a non-occupied territory, who, on the ap-
proach of the enemy, of their own accord take up arms to resist
the invading troops, without having had time to organize them-
selves in conformity with Article 1 [providing for responsible
leader, uniform, etc.], shall be considered as belligerents if they
carry arms openly and if they respect the laws and customs of
war." *
(6) The stcdus of combatants is not aUouxxble for those who,
without state authorization, engage in aggressive hostilities.
(1) When in the time of war the officers and crew of a mer-
chant vessel attack another merchant vessel, they are liable to
punishment according to the nature of their acts, and the state
to which they owe allegiance is only indirectly responsible, nor
can they claim its protection.
(2) When bands of men without state authorization and
control, such as guerrilla troops or private persons, engage in
^ Appendix, p. Ixiii, * See Appendix, p. lzx&«
STATUS OP PERSONS IN WAR 247
offensive hostilities, they are liable to the same treatment as
above mentioned.
(3) Spies are those who, in disguise acting under false pre-
tenses, collect or seek to collect information in the districts
occupied by the enemy, with the intention of communicating
it to the opposing force.^ Such agents are not forbidden, but
are liable to such treatment as the laws of the capturing army
nuiy prescribe. This may be death by hanging, though a spy
is always entitled to a trial. The oflSce of spy is not necessarily
dishonorable.
" Soldiers not in disguise who have penetrated into the zone of
operations of a hostile army to obtain information are not con-
sidered spies. Similarly, the following are not considered spies :
soldiers and civilians, carrying out their mission openly, charged
with the delivery of dispatches destined either for their own
army or for that of the enemy. To this class belong likewise
individuals sent in balloons to deliver dispatches, and generally
to maintain conmiunication between the various parts of an
army or a territory." *
105. Noncombatants
Noncombatants include those who do not participate in
the hostilities. In practice this status is generally conceded
to women, children, clergy, scientists, artists, professional
men, laborers, etc., who make no resistance, whether subjects
of the state or not. These are, of coiu^e, liable to the hard-
ships consequent upon war.
(a) When the armed forces of one state obtain authority
over territory previously occupied by the other
combatents State, the noncombatant population is free from
tarnndw'^ all violence or constraint other than that re-
controiofan quired by military necessity. They are liable,
*"*"^' however, to the burdens imposed by civilized
' Appendix, pp. ziz, Izviii. * Appendix, p. Ixviii,
248 INTERNATIONAL LAW
warfare. The disregard of the rights of noncombatant populi^
tion in occupied areas during the World War in no way changed
these principles.
(6) Subjects of one of the belligerent states sojourning
within the jurisdiction of the other were in early times de-
tained as prisoners. While Grotius (1625) allows
subjects of one this on the ground of weakening the forces of the
SS^:SL«h, ^^^^y'' »°d whUe Ayala had earlier (1597)
jurisdiction of sanctioned it,* Bynkershoek, wnting in 1737,
mentions it as a right seldom used. The deten-
tion of English tourists by Napoleon in 1803 was not in accord
with modern usage. During the eighteenth century, the custom
was to secure, by treaty stipulation, a fixed time after the out-
break of hostilities during which enemy subjects might with-
draw. While similar provisions are inserted in many treaties
of the nineteenth century, the practice till 1914 seemed to in-
dicate that even in the absence of treaty stipulations, a reason-
able time would be allowed for withdrawal. A large number of
treaties of the nineteenth century have provision? to the effect
of Article XXVI of the treaty between the United States and
Great Britain of 1794 : " The merchants and others of each of
the two nations residing in the dominions of the other shall have
the privilege of remaining and continuing their trade, so long
as they live peaceably and conunit no offense against the laws ;
and in case their conduct should render them suspected, and
their respective Governments should think proper to order
them to remove, the term of twelve months from the publication
of the order shall be allowed them for that purpose, to remove
with their families, effects, and property." Article 23 of the
treaty with Prussia, 1799, is similar. This custom of allowing
enemy subjects to remain during good behavior has become com-
mon, but can hardly be called a nde of international law. Per-
» " De Jure Belli," III. ix, 4.
s " De Jure et Officiia BeUicis," I, v. 25.
STATUS OP PERSONS IN WAR 249
sons thus aUowed to remain are generally treated as neutrals/
though in the case of Aleinous v. Nigreu ^ it was held that an
enemy subject, residing in England without a license, could not
maintain an action for breach of contract, though the contract
which had been entered into before the war was valid and might
be enforced when peace was restored.
In the case of Porter v. Freudenberg in 1915 it was said:
" When once hostilities have conmienced he (an alien enemy
plaintiff) cannot, so long as they continue, be heard in any suit
or proceeding in which he is the person first setting the Courts
in motion," though " he can appear and be heard in his own
defence." •
1 Janaon f . Driefontein, Consolidated Minea, Ltd., L. R. [1902], A. C. 484.
s 4 EUia and Blackbtim's Reporta. 217.
* L. R. [1915], 1 K. B. 857.
OUTLINE OF CHAPTER XVIH
STATUS OF PROPERTT ON LAND
106. PUBLIC PROPERTT OF THE BNElffT.
(a) Early practice.
(b) ProTisioiis of the Hague Confereoce.
107. REAL PROPERTT OF ENEMT SUBJECTS.
108. PERSONAL PROPERTT OF ENEMT SUBJECTS.
(a) Movable property now exempted as far as possiUo.
(1) Stock in the public debt wholly exempt
(b) Angary.
(c) Contributions.
((f) Requisitions.
(e) Foraging.
(/) Booty. ,
250
CHAPTER XVIII
STATUS OF PROPERTT ON LAND
106. Public Property of the Enemy
(a) FoBMERLT the public property of the enemy, whatever
its nature, was regarded as hostile, and liable to seizure. Prac-
uowmmtdf ^^^ ®' modern times has gradually become less
extreme, and the attitude of the powers in re-
storing the works of art which Napoleon had brought to Paris
shows the sentiment early in the nineteenth century. By
Article 245 of the Treaty of Versailles, June 28, 1919, (Jermany
was bound to restore to France works of art, etc., carried away
in 1870-1871. The practice in regard to public property of the
enemy has now become fairly defined though not always ob-
served in the World War.
The public property of one belligerent state within the terri-
tory of the other at the outbreak of war, if real property, may
be administered during the war for the benefit of the local state ;
if movable, it is liable to confiscation. Works of art, scientific
and educational property, and the like aYe, however, exempt.^
(6) In case one belligerent by military occupation acquires
ProYiiioBsol authority over territory formerly within the
the Hagve jurisdiction of the other, the rules of the Hague
Conference of 1907 provide as follows : —
"Abt. 53. An army of occupation can only take possession of
the cash, funds, and realizable securities belonging strictly to the
State, depdts of arms, means of transport, stores and supplies, and,
geaerally, all movable property of the State which may be used
for military operations.
"All appliances, whether on land, at sea, or in the air, adapted
1 Appendix, pp. viii, Ixviii, Ixxl
251
262 INTERNATIONAL LAW
for the transmission of news, or for the transport of persons or
things, apart from cases governed by maritime law, dep6ts of
arms and. generally, all kinds of war material, even though be-
longing to private persons, may be seized, but they must be
restored at the conclusion of peace, and indemnities paid for
them.
"Art. 54. Submarine cables connecting an occupied territory
with a neutral territory shall not be seized or destroyed except in
the case of absolute necessity. They must likewise be restored and
compensation fixed when peace is made.
''Art. 55. The occupying State shall be regarded only as ad-
ministrator and usufructuary of public buildings, real estate, for-
ests, and agricultural works belonging to the hostile State, and
situated in the occupied country. It must protect the capital of
these properties, and administer it according to the rules of
usufruct.
"Art. 56. The property of communes, that of religious, char-
itable, and educational institutions, and those of arts and science,
even when State property, shall be treated as private property.
"All seizure of, and destruction, or intentional damage done
to such institutions, to historical monuments, works of art or
science, is prohibited, and should be made the subject of prooeed-
mgs. '■
107. Real Property of Enemy Subjects
The real property of the subject of one belligerent situated
within the territory of the other belligerent was in early times
appropriated by the state ; later practice administered it during
the war, for the benefit of the state ; and recently it was treated
as the real property of any nonhostile foreigner, but during
the World War alien enemy property was ordinarily placed
under government control or restrictions.*
* Appendix, p. Izzi.
* British Proclamation relating to Trading with the Enemy, August 5, 1014 ;
French Decree of September 14. 1914; U. S. Trading with the Enemy Act, Oc-
tober 6, 1917, 40 Ste. at Large, 459 ; and subsequent legislation. See idso 2
Hyde, 232.
STATUS OF PROPERTY ON LAND 253
It is generaUy conceded that real property of the subjects
of either state is unaffected by hostile occupation by the forces
of the other state, except so far as the necessities of warfare
may require.^
106. Personal Property of Enemy Subjects
(a) The movable properly of the subject of one of the bellig-
erent states in the territory of the other belligerent state was
until comparatively recent times appropriated. In the case
of Brown v. United States,' in 1814, the Supreme Court held that
the " existence of war gave the right to confiscate, yet did not
of itself and without more, operate as a confiscation of the
property of an enemy," though it further held that the court
could not condemn such property unless there was a legislative
act authorizing the confiscation. Many modem treaties pro-
vide that in case of war between the parties to the treaties sub-
jects of each state may remain in the other, " and shall be
respected and maintained in the full and undisturbed enjoyment
of their personal liberty and property so long as they conduct
themselves peaceably and properly, and commit no offense
against the laws." • Recent practice before the World War had
exempted personal property of the subject of one belligerent
state from all molestation, even though it was within the terri-
tory of the other at the outbreak of war. Of course, such
property was Eable to the taxes, etc., imposed upon others not
enemy subjects and could not be used for war purposes by the
owner.
In case of hostile occupation, the Hague Conference of 1907
summarized the rules as follows : —
Cf
*'Akt. 46. . . . Private property cannot be confiscated.
Abt. 47. Pillage is formally prohibited.
1 Appendix, pp. rii, .Ixzi. * 8 Cr., 110.
* See Index U. S. TreaUes. " War."
254 INTERNATIONAL LAW
"Art. 48. If, in the territory occupied, the occupant collects
the taxes, dues, and tolls imposed for the benefit of the State, he
shall do so, as far as possible, in accordance with the rules in exist-
ence and the assessment in force. . . .
"Art. 49. If . . . the occupant levies other money taxes
in the occupied territory, this can only be for military necessities
or the administration of such territory."
Articles 50, 51, 52, provide that burdens due to military occupa-
tion shall be as equable as possible, and that payment shall be made
for requisitions.^
The practice now is to exempt private property so far as
possible from the consequences of hostile occupation, and
to take it only on the ground of reasonable military necessity.*
With regard to one particular form of property, modem
commercial relations as influenced by state credit have been
more powerful than theory or country. The stock in the
pvblic debt held by an enemy subject is wholly exempt from
seizure or sequestration, and in practice interest has often
been paid to enemy subjects during the continuance of the war.
(6) A practice similar to that formerly sanctioned under the
so-caUed right of angary {jus angariae) was permitted in re-
gard to means of transport and communication under Arti-
cles 53 and 54 of Hague Convention IV and Article 19 of
Hague Convention V of 1907.* These articles permit the bellig-
erent to seize the means of transport and communication sub-
ject to restoration and compensation. During the World War
this practice was conmion.
In case of belligerent occupation, contributions, requisi-
tions, and other methods are sometimes resorted to in supply-
ing military needs.
(c) CorUribtUicms are money exactions in excess of taxes.
Contributions should be levied only by the general-in-chief.
*■ Appendix, p. Ixx. * Appendix, pp. vii, Ixx.
* Appendices, pp. Ixxi, ixxv ; see aiao p. 355.
STATUS OF PROPERTY ON LAND 256
(d) Requisitions consist in payment in kind of such arti-
cles as are of use for the occupying forces, as food, clothes,
horses, boats, compulsory labor, etc. Requisitions may be
levied by subordinate commanders when there is immediate
need, otherwise by superior officers. Such requisitions should
not be in excess of need or of the resources of the region.
Receipts for the value of both contributions and requisi-
tions should be given, in order that subsequent impositions
may not be made without due knowledge, and in order that
the sufferers may obtain due reparation on the conclusion of
peace, the Hague Convention provided : —
The requisitions in kind shall, as far as possible, be paid for in
ready money ; if not, a receipt shall be given and the payment
of the amount due shall be made as soon as possible.^
In naval warfare " requisitions for provisions or supplies
for the inmiediate use of the naval force before the place in
question " ' are allowed. Such requisitions may be enforced
by bombardment if necessary. Contributions, however, cannot
be exacted unless after actual and complete belligerent occu-
pation, as by land forces. Contributions in the form of ransom
to escape bombardment cannot be levied, as in such cases occu-
pation is not a fact.'
It was generally accepted in principle that contributions
should not be exorbitant or penal in character. Before 1914
it was maintained that reasonable contributions from cities
would distribute the burden of war, the contribution levied upon
the city being used to purchase supplies from rural communities.
{e) Foraging is resorted to in cases where lack of time makes
it inconvenient to obtain supplies by the usual process of requi-
sition, and consists in the actual taking of provisions for men
and animals by the troops themselves.
Receipts should, when possible, be given. It often happens
1 Appendix, p. Izzi. * Soott, " Ck>nferenoe8," p. 202. * Ibid. •
256 INTERNATIONAL LAW
that no owner appears to demand compensation. The goods
taken are sometimes of such nature as to make valuation dif-
ficult.
(/) Booty commonly applies to military supplies seized from
the enemy. In a more general sense it applies to aU property
of the enemy which is susceptible of appropriation. Such
property passes to the state of the captor, and its disposition
should be determined by that state.
OUTLINE OF CHAPTER XIX
STATUS OF PROPERTY AT SEA
109. VESSELS.
(a) Status of public vessels of a belligerent
(b) Status of private vessels of a belligerent.
(1) Provisions of the Hagtt6 Conference.
(c) Transfer of enemy vessel to a neutral flag.
110. GOODS.
111. SUBMARINE AND RADIO TELEGRAPHY.
(a) Treatment of submarine telegraphic cables in time of war.
(b) Treatment of radio telegraph in time of war.
258
CHAPTER XIX
STATUS OF PROPERTY AT SEA
109. Vessels
Vesseia may be classed as public, belonging to the state,
and private, belonging to citizens of the state,
(a) Public vessels of a belligerent are liable to capture in
status of public ^^^ P^^ ^^ ^^* except in jurisdictional waters
Tauais of A of a neutral. The following public vessels are,
^^^ however, exempt from capture unless they per-
form some hostile act : —
(1) Cartel ships commissioned for the exchange of
prisoners.
(2) Vessels engaged exclusively in non-hostile scien-
tific work and in exploration.^
(3) Hospital ships, properly designated and engaged
exclusively in the care of the sick and wounded.*
(6) Private vessels of the enemy are liable to capture in
Status of nri- ^^^ T^^ ^^ ^^ except in jurisdictional waters of
vata TMsaia of a neutral. The following private vessels when
*'*" innocently employed are, however, exempt from
capture : —
(1) Cartel ships.
(2) Vessels engaged in explorations and scientific work.
(3) Hospital ships.
(4) Small coast fishing vessels. This exemption is not
allowed to deep-sea fishing vessels.'
^ Ai>peDdiz, p. Izxziv. * Appendix, p. Ixzviii.
* Appendix, p. Ixxxiv ; PaqueU Habana, 175 U. 8. 677 ; The Berlin, L.
R. 1014, p. 266.
250
260 INTERNATIONAL LAW
(5) Small boats employed in local trade.
(6) Vessels of one of the belligerents in the ports of
the other at the outbreak of hostilities were frequently
allowed a specified time in which to take cargo and de-
part. In the war between the United States and Spain,
1898, Spanish vessels were allowed thirty days in which
to depart and were to be exempt on homeward voyage.
Vessels sailing from Spain for the United States ports
before the declaration of war were to be allowed to con-
tinue their voyages.* Spain allowed vesseb of the United
States five days in which to depart.' It did not prohibit
the capture of such ships after departure. No provision
was made for vessels sailing from the United States for
Spanish ports before the declaration of war.
The Hague Convention of 1907 relative to the Status
of Enemy Merchant Ships at the Outbreak of Hostili-
Proviskmi of *^^ provided for " a reasonable number of
the Hague days of grace " for vesseb in an enemy port
at the outbreak of hostilities or entering
an enemy port without knowledge of the hostilities.
Enemy merchant vessels on the sea ignorant of the out-
break of hostilities may be detained without compensa-
tion or requisitioned or even destroyed on payment of
compensation, due care being taken for security of per-
sons and papers on board.
These exemptions do not apply to " merchant ships
whose build shows that they are intended for conversion
into war-ships."'
At the outbreak of the World War, Great Britain was
prepared to allow ten days of grace to enemy vesseb,
France allowed seven days, Japan two weeks, but in
general belligerents entering the war at later periods
^ Proclamation of April 26, 1898. > Decree of April 23, 1888.
* Appendix, p. IzzvL
STATUS OF PROPERTY AT SEA 261
granted no days of grace.* The principle of reciprocity
in number of days, earlier advocated by the United
States, was generally followed where days of grace were
granted. .
In the Prize Law of Japan, 1894, owing to the international
relations of the lighthouse system along the Chinese coast,
*^ boats belonging to lighthouses " were exempt. This practice
is not usual. '
By treaty of August 20, 1890, between Great Britain and
France vessels employed in the postal service were exempted,
but this is not a general practice.' In the World War postal
service vessels received scant consideration.
(c) To remove uncertainty in regard to transfer of an enemy
vessel to a neutral flag in order to change the status of the
TnaUt^ vessel in anticipation of or after the outbreak
MMmy Tenel of war, somewhat detailed regulations were pro-
"*" posed in Articles 55 and 56 of the Declaration
of London, 1909 ^ :
The Declaration of London was not ratified, and at the out-
break of the World War the attitude of states upon the right
of transfer differed. The United States had long maintained
that a bona fide transfer was valid, though Congress in 1916
forbade the Shipping Board the right to purchase or em-
ploy vessels registered as of or flying the flag of belligerent
states.^ On the continent of Europe the doctrine, though not
universally adopted, has been that transfers during war were
void and that the intent should be considered. The British
and American attitudes have usually been the same, but in
the World War the British practically adopted the continental
view.*
1 N. W. C. 1915, p. 19: 1917. pp. 200. 246; 1918. p. 112.
* Takahaahi, Chino-Japaneae, p. 178. * Appendix, p. Izxxiv.
* Appendix, p. cxxxviiL * 39 Sts. at Large, 730.
•Order in Council. Oct. 26, 1915; The Dacta, Conaeil des Prises. (1916)
180.
262 INTERNATIONAL LAW
110. Goods
In general, all public goods found upon the seas outside
of neutral jurisdiction are liable to capture. Works of art,
historical and scientific collections, are sometimes held to be
exempt, and probably would not be retained.
Private hostile property at sea and not under the flag of
a neutral is liable to capture unless such property consbt of
vessels, etc., exempt under § 109 (6).
Contraband of war under any flag, outside of neutral terri-
tory, and destined for the enemy forces, is liable to capture.
Neutral goods in the act of violating an established blockade
may be captured.
Previous to the Treaty of Paris in 1856, great diversity in
the treatment of maritime conunerce prevailed. This treaty
provided that : —
" The neutral flag covers enemy's goods, with the exception
of contraband of war," and
" Neutral goods, with the exception of contraband of war,
are not liable to capture under the enemy's flag." ^
Nearly all the important states of the world acceded to
these provisions except the United States and Spain, and both
of these powers formally proclaimed that they would observe
these provisions in the War of 1898.*
111. Submarine and Radio Telegraphy
(a) The position of submarine telegraphic cables was until
recent years of great importance. Such cables easily became
instruments of value in carrying on the operations of war. A
convention of representatives of the important states of the
world met at Paris in 1884, and agreed upon rules for the pro-
tection of submarine cables.' Article XV of this convention
> Appendix, p. zxxi
< U.S. Proclaznation, April 26. 1898; Spain, Decree of April 23, 1898.
* 2 Treaties, p. 1949.
STATUS OP PROPERTY AT SEA 263
announced that "It is understood that the stipulations of
this convention shall in no wise affect the liberty of action
SnimiuiiM of beUigerents."
tei€crapiik The treatment of submarine cables in time of
war as determined by opinions, proclamations,
etc., seemed to establish that,
(1) Submarine telegraphic cables between points within
the territory of an enemy or between a point within the ter-
ritory of one belligerent and a point within the territory of
the other belligerent are liable to such treatment as the exigen-
cies of war may determine.
(2) Submarine telegraphic cables between points within
neutral territories are not liable to interruption.^
(3) Submarine telegraphic cables between a point within
the territory of an enemy and a point within the territory of
a neutral are liable to interruption within the enemy's juris-
diction or outside of neutral jurisdiction if the cables are used
for war purposes.
It is generally held that such interruption renders the bel-
ligerent interrupting the cable service, to some extent liable.
The Convention of The Hague in 1907 respecting the Laws
and Customs of War on Land provided :
'' Art. 54. Submarine cables connecting an occupied territory
with a neutral territory shall not be seized or destroyed except in
the case of absolute necessity. They must likewise be restored,
and compensation fixed when peace is made."
In recent years there has been a tendency on the part of
neutrals to assume censorship over submarine telegraphic
cables. States pursued this course quite generally in 1914.
1 Stockton* *' Outlines," p. 360.
See discuflsion. Wilson, ** Submarine Telegraphic Cables in their International
Relations/' Lectures U. S. Naval War College. 1901 ; also " The Report of the
Inter-Departmental Committee on Cable Communication *' to British Parlia-
ment. March. 1902.
264 INTERNATIONAL LAW
(6) Radio telegraph has also become in late years a very
important factor in war. There has been an attempt to
Rn^o extend to radio conmiunication rules analogous
teiecnph. ^q those applied to submarine cables, but these
are not sufficient in all cases. Under the London Conven-
tion of July 5, 1912, states assumed a large measure of
control over wireless telegraphy. A corresponding responsi-
bility must be assumed. Russia on April 15, 1904, in a note
addressed to the foreign states endeavored to make the use of
wireless by correspondents on neutral vessels analogous to
spying.
Objection was inmied lately made to the treatment of cor-
respondents as spies, but no objection was made to the seizure
of the wireless apparatus as prize.
The Hague Convention of 1907 respecting Rights and Duties
of Neutral Powers also provides that :
'' Abt. III. Belligerents are likewise forbidden to :
" (a) Erect on the territory of a neutral Power a wireless teleg-
raphy station or other apparatus for the purpose of communicating
with belligerent forces on ladd or sea ;
" (6) Use any installation of this kind established by them before
the war on the territory of a neutral Power for purely military
purposes, and which has not been opened for the service of public
messages. ...
"Art. VIII. A neutral Power is not called upon to forbid or
restrict the use on behalf of the belligerents of telegraph or telephone
cables or of wireless telegraphy apparatus belonging to it or to
companies or private individuals." ^
While the law in regard to radio communication is not settled
yet certain principles seem to be recognized.
1. A belligerent may regulate or prohibit the use of wire-
less telegraph within the area of operations.
> Appendix, pp. Izxii, izxiii; N. W. C. 1907. pp. 138-176.
STATUS OF PROPERTY AT SEA 265
2. Unneutral use of wireless telegraph on board a neutral
vessel makes the vessel liable to the penalty for unneutral
service.
3. The wireless apparatus is similarly liable to penalty, i.e.
it may be confiscated or sequestrated.
During the World War radio stations in neutral states were
usually placed under censorship and vessels entering ports were
required to disconnect their radio apparatus.
OUTLINE OF CHAPTER XX
CONDUCT OF HOSTIUTIES
112. BELLI6RRBNT OCCUPATION.
(a) The sovereigiity of the occupied territory.
(b) The load laws of the invaded state.
(c) Public and private property.
(d) Personal rights.
lis, FORBIDDBN METHODS IN THE CONDUCT OF HOSTIUTIBS.
(a) Declaration of the Hague Conferences on this subject.
114. PRIVATEERS.
116. VOLUNTARY AND AUXILIART NAVY.
(a) The organization of a volunteer navy.
(fr) The use of auxiliary vessels.
116. ARMED MERCHANT VESSELS.
(a) British attitude.
ib) Attitude of United States.
(c) Attitude of the Netheriands.
(<f) In Limitation of Armament Conference.
118. AERIAL WARFARE.
(a) Ear^ use of air.
(b) Twentieth century rules.
(c) Aircraft in World War.
119. POSTLIMINIUM.
(a) The jus postliminium defined.
(b) Restoration of property or territory.
(c) Rules as to restoration of ships.
180. PRISONERS AND THEIR TREATMENT.
(a) Who may be made prisoners.
ib) Refusal of quarter and liability to retaliation.
2^1
(c) The practice of intenunent.
(d) Brnploymeiit of prisoners of war.
(e) Exchange of prisoners a voluntary act.
(/) Release on parole.
(g) Treatment of the sick and wounded.
(h) Bureau of Information established by the Hague
( j) Prisoners in World War.
121. NON-HOSTILB RELATIONS OF BELLIGBRBNTS
(a) Flag of truce.
(b) Cartels.
(c) Passports, safe-conducts, and safeguards.
(d) License to trade.
(e) Suspension of hostilities, truce, armistice.
(/) Armistices in World War.
d) Capitulation.
2(58
CHAPTER XX
CONDUCT OF HOSTILITIES
112. Belligerent Occupation^
In rV Hague Convention of 1907, it is stated that for land
warfare:
"Art. XLII. Territory is considered occupied when it is
actually placed under the authority of the hostile army.
"The occupation applies only to the territory where such author-
ity is established, and in a position to assert itself.
"Art. XLIII. The authority of the legitimate power having
actually passed into the hands of the occupant, the latter shall
take all steps in his power to reestablish, and insure, as far as
possible, public order and safety, while respecting, unless abso-
lutely prevented, the laws in force in the country." *
(a) The sovereignty of the occupied territory does not pass
to the occupying state, but only the right to exercise the author-
ity necessary for safety and operations of war. Belligerent
occupation was formerly held to carry with it the right to full
The wiTtr- disposition of whatever appertained to the terri-
mkgatr of ocea- tory. During the nineteenth century it was given
pied tenttory. ^ clearer definition. Belligerent occupation is a
fact impairing the exercise of the usual jurisdiction.
(6) In general the civil laws of the invaded state continue
in force in so far as they do not affect the hostile occupant
Local lowi of unfavorably. The regular judicial tribunals con-
inradod itftte. tinue to act in cases not affecting the military
occupation. Administrative officers continue to perform their
^ For the diooaesion of the laws and customa of war, at the Hague Peace
Omferenoe, see Holls, 134 et aeq., and Higgins. p. 266 ef seq,
*8ee Appendix, pp. Iziz, Izx.
269
270 INTERNATIONAL LAW
functions in absence of orders to the contrary, though of
course purely political officers would be limited in the exer-
cise of their functions; e.g. registrars of marriages, births,
and deaths might act as usual, while the authority of a gov-
ernor might be suspended. There is no doubt that the free-
dom of the press cannot be claimed, as this might bring grave
consequences upon the occupying force.
(c) The belligerent occupant may destroy or appropriate
public property which may have a hostile purpose, as forts,
arms, armories, etc. The occupying force may
priTftto enjoy the income from the public sources,
property. Strictly private property should be inviolable,
except so far as the necessity of war requires contrary action.
Personal (^ The Hague Convention enjoins the bel-
**>**■• ligerent occupant to respect personal rights.
"Art. XLIV. Any pressure on the population of occupied
territory to furnish information about the army of the other bel-
ligerent or about its means of defence is prohibited.
" Art.XLV. Any pressure on the population of occupied terri-
tory to take the oath to the hostile Power is prohibited.
" Art. XLVI. Family honor and rights, individual life and
private property, as well as religious convictions and practice, must
be respected." ^
The invader is bound to give such measure of protection to
the inhabitants of the occupied territory as he is able.^
Belligerent occupation begins when an invaded territory is
effectively held by a military force.
113. Forbidden Methods
In the conduct of hostilities certain methods of action and
certain instruments are generally forbidden. These prohibitions
refer mainly to land and sea warfare though the principles may
be fundamental.
^ Appendix, pp. izvii-lxx. * Appendix, pp. ix, Ixx.
u
CONDUCT OF HOSTILITIES 271
Deceit involving perfidy is forbidden.^ As there are certain
conventional agreements held to exist even between enemies,
violations of these agreements remove from the violator the
protection of the laws of war.
On land it is not permitted
" (a) To employ poison or poisoned weapons ;
"(6) To kill or wound treacherously individuals belonging to
the hostile nation or army ;
"(c) To kill or wound an enemy who, having laid down hb
arms, or having no longer means of defense, has surrendered at
discretion ;
id) To declare that no quarter will be given ;
(e) To employ arms, projectiles, or material calculated to
cause unnecessary suffering ;
" (/) To make impropefr use of a flag of truce, of the national
flag, or of the military insignia and uniform of the enemy, as well
as the distinctive badges of the Geneva Convention ;
"(^) To destroy or seize the enemy's property, unless such
destruction or seizure be imperatively demanded by the neces-
sities of war ;
"(A) To declare abolished, suspended, or inadmissible in a
court of law the rights and actions of the nationals of the hos*
tile party.
"A belligerent is likewise forbidden to compel the nationals
of the hostile party to take part in the operations of war directed
against their own country, even if they were in the belligerent's
service before the commencement of war." *
"The bombardment by naval forces of undefended ports, towns,
villages, dwellings, or buildings ^ forbidden.
"A place cannot be bombarded solely because automatic sub-
marine contact mines are anchored off the harbor." '
Undefended towns may be bombarded if they refuse rea-
sonable requisitions for supplies necessary for the immediate
i Appendix, p. v. * Appendix, p. Ixvii.
* Soott, ** Conferences," p. 260.
272 INTERNATIONAL LAW
use of the naval force, but not for failure to make money con-
tributions.^ Provisions for protection of non-military buildings,
monuments, etc., have been made.^
While the use of false colprs in naval war is not yet forbidden,
when summoning a vessel to lie to, or before firing a gun in
action, the national colors must be displayed. The use of the
conventional flag of truce, a white flag, or of the hospital flag,
red cross on white ground, to cover military operations or
supplies is forbidden.' Stratagems, such as feigned attacks,
ambush, and deceit not involving perfidy, are allowed.^
The Declaration of St. Petersburg of 1868 prohibited ex-
plosive bullets weighing less than 400 grams. There was also
an agreement in 1899 " to abstain from the use of bullets which
expand or flatten easily in the human body." Many states
became parties to this agreement.
The Hague Conference of 1899 also declared against the
" use of projectiles, the sole object of which is the diffusion of
asphyxiating or deleterious gases." ^
The Washington Conference in 1922 prohibited " The use in
war of asphyxiating, poisonous or other gases, and all analogous
liquids, materials or devices," as "having been justly con-
demned by the opinion of the civilized world." Nine powers
signed this treaty.
The Hague Convention of 1907 provided :
" Art. I. It is forbidden :
'' 1. To lay unanchored automatic contact mines, except when
they are so constructed as to become harmless one hour at most
after the person who laid them ceases to control them ;
"2. To lay anchored automatic contact mines which do not
become harmless as soon as they have broken loose from their
moorings ;
1 Scott, *' Conferences/' p. 261. * Appendix, pp. Izvii-lzyiii.
* Appendix, pp. Ixvii, Ixxxii. * Appendix, p. Ixrii.
* See Higgins, *' Hague Peace Conferences," 493. The United States did not
sign this declaration.
CONDUCT OF HOSTILITIES 273
"3. To use torpedoes which do not become hannless when they
have missed their mark.
"Abt. II. It is forbidden to lay automatic contact mines off
the coast and ports of the enemy, with the sole object of inter-
cepting commercial shipping."
The World War showed that many of the accepted rules of
war are antiquated and that new rules should be adopted.
Retaliation, devastation, refusal of quarter, and other severe
methods once resorted to were, before the World War, regarded
as forbidden, except as pumshment for violation of the laws of
war.
114. Privateers
A private armed vessel owned and manned by private persons
and under a state conmiission called a " letter of marque," ^
is a privateer.
This method of carrying on hostilities has gradually met
with less and less favor.* From the early days of the fifteenth
century neutrals were given conunissions. Toward the end
of the eighteenth century treaties and domestic laws gradually
provided against this practice, though letters of marque were
offered to foreigners by Mexico in 1845, and by the Confed-
erate States in 1861-1865. These were not accepted, however,
as such action had then come to be regarded as piracy by many
states. Privateering of any kind, as Kent said, " under all
the restrictions which have been adopted, is very liable to abuse.
The object is not fame or chivalric warfare, but plunder and
profit. The discipline of the crews is not apt to be of the highest
order, and privateers are often guilty of enormous excesses,
and become the scourge of neutral commerce. . . . Under the
best regulations, the business tends to blunt the sense of private
' For form, see United States v. Baker, 5 Blatchford, 6 : 2 Halleck, 110.
* 8ee article of Dr. Stark on " Privateering,'* in Columbia University Publi-
cations (1897), Vol. VIII, No. 3.
274 INTERNATIONAL LAW
right, and to nourish a lawless and fierce spirit of rapacity/' ^
Under the Declaration of Paris, 1856, " Privateering is, and re-
mains^ abolished." ^ This declaration was agreed to by the
leading states of the world, with the exception of the United
States, Spain, Mexico, Venezuela, and China. In the Spanish-
American War of 1898 the United States and Spain observed
its generally accepted principles.^ The importance of the
subject of privateering is now largely historical, as it is doubtful
whether any civilized state would resort to this method of
carrying on maritime war.
115. Voluntary and Auxiliary Navy
(a) The relationship of private vessels to the state in time of
war, which had been settled by the Declaration of Paris in
The organiza- 1856, was again made an issue by the act of
tion of a Toiim- Prussia in the Franco-German War. By a de-
teer navy*
cree of July 24, 1870, the owners of vessels were
invited to equip them for war and place them under naval
discipline. The officers and crews were to be furnished by the
owners of the vessels, to wear naval uniform, to sail under the
North-German flag, to take oath to the articles of war, and to
receive certain premiums for capture or destruction of the
enemy's ships. The French authorities complained to the Brit-
ish that this was privateering in disguise and a violation of the
Declaration of Paris. The law officers of the crown declared
that there was a " substantial difference " between such a vol-
unteer navy and a system of privateering, and that the action
of Prussia was not contrary to the Declaration of Paris. With
this position some authorities agree, while others dissent. The
weight of the act as a precedent is less on account of the fact
that no ships of this navy ever put to sea. The similar plan of
1 Kent Com., 07.
* Appendix, p. zzxi.
* ProdamationB and Decrees (April 25, 1898), p. 77.
CONDUCT OF HOSTILITIES 275
Greece for a volunteer navy in 1897 was never put into oper-
ation.^
Russia, in view of possible hostilities with England in 1877-
1878, accepted the offer of certain citizens to incorporate into the
navy, during the war, vessels privately purchased and owned.
Vessels of this character were numbered in the " volunteer fleet,"
and though privately owned and managed from 1886, were
under the Admiralty. There seems to be little question as to
the propriety of such a relationship between the state and the
owners of vessels which may be used in war.
(6) Still less open to objection is the plan adopted by Great
Britain in 1887 and by the United States in 1892, by which these
of governments, through agreements with certain
auziiiAiy of their great steamship lines, can hire or pur-
^*" ' chase at a fixed price specified vessels for use in
case of war. The construction of such vessels is subject to
government approval, and certain subsidies are granted to
these companies. In time of war both officers and men must
belong to the public forces. The plans of Russia, Great Britain,
and the United States have met with little criticism.^
The method of conunissioning and of employing auxiliary
vessels has given rise to much discussion, particularly during the
Russo^apanese War in 1905 and the World War in 1914-1918.
Certain states contend that the conversion of a merchant ship
into a war ship should not be permitted on the high sea. Other
states take the opposite position. The Hague Conference of
1907, as the London Naval Conference of 1908-1909, was unable
to reach an agreement as to the matter of conversion of mer-
chant ships into war ships on the high seas.
There is, however, a general recognition of the necessity for
control of a converted ship by direct authority of the state
whose flag it bears. Such a ship should also have the external
» R. D. I., IV. 695.
> See Act of May 10. 1892 ; 27 U. S. Sts. at Large. 27.
276 INTERNATIONAL LAW
marks of a war ship and should observe the laws and customs
of war^ and the beUigerent making such conversion should
inmiediately make it public.
116. Armed Merchant Vessels
(a) During the World War resort to the use of armed mer-
chant vessels was conunon. In the case of the Nereide, 1813,
which was frequently cited, it was said, " A belligerent has a
perfect right to arm in his own defence." ^ On March 26, 1913,
Mr. Churchill, representing the British Admiralty, said in the
House of Conunons, " Hostile cruisers, wherever they are found,
will be covered and met by British ships of war, but the proper
reply to an armed merchantman is another merchantman
armed in her own defence."* And on March 17, 1914, he
said, " They are not allowed to fight with any ships of war." *
Britirii ^^ August and September, 1914, the United
Attitoda. States and Great Britain exchanged numerous
notes on the subject of armed merchant vessels.* The note of
August 25, 1914, gave " the United States Government the
fullest assurances that British merchant vessels will never be
used for purposes of attack, that they are merely peaceful
traders armed only for defence, that they will never fire unless
first fired upon, and that they will never under any circum-
stances attack any vessel." '
(6) On September 19, 1914, the State Department of the
Attitude of United States made known its attitude in a
United sutM. memorandum on " The status of armed mer-
chant vessels," admitting defensive armament and trying to fix
its limit by physical description and evidence " as to the in-
tended use." • This memorandum allowed six-inch guns astern,
etc. The attitude taken in this memorandum became the sub-
1 g Cr.. 388. * 50 Parliamentary Debates (1913), 1776.
» 59 Ibid., 1925. * Special Sup. A. J., July, 1916,
» Ibid., p. 230. • /Md., p. 312.
CONDUCT OF HOSTILITIES 277
ject of much note-writing, and on January 18, 1916, the United
States attempted to obtain a modus vivendi in accordance
with which submarines should conform to rules for siurface
vessels of war in exercising the right of visit, search, and cap-
ture, and merchant vessels should carry no armament what-
soever. The State Department said, after discussing the
changed conditions on the seas, owing to the disappearance of
pirates and other dangers, " consequently, the placing of guns
on merchantmen at the present day of submarine warfare
can be explained only on the ground of a purpose to render
merchantmen superior in force to submarines and to prevent
warning and visit and search by them. Any armament, there-
fore, on a merchant vessel would seem to have the character of
an offensive armament." ^ The belligerents did not agree
upon the suggested modus mvendi,
(c) The Netherlands Government issued its neutrality
proclamation on August 5, 1914, and Article 4 provides " No
warships or ships assimilated thereto belonging to any of the
AttHode of belligerents shall have access to said (Netherlands)
Netfa«rknds. territory." Under this Article armed merchant
vessels were excluded from Dutch waters. The Dutch Gov-
ernment stated that since these vessels were armed to perform,
in case of need, an act of war, the Government was obliged
to consider armed merchant vessels assimilated to vessels of
war, and the Dutch Government maintained its position
in spite of protests from both belligerent parties.
(d) The Conference on Limitation of Armament by the
Treaty in relation to the Use of Submarines and Noxious Gases
,.1*^*1 ^ in Warfare, February 6, 1922, aimed to regularize
LiOUtfttlOll 01 ^
Armftment Cofr- the use of submarines,^ but apparently expected
orence. ^j^^ ^^ ^j armed merchant vessels to continue,
as there was inserted as Article 14 of the Treaty Limiting
Naval Armament a provision for stiffening the decks of mer-
1 Special Sup. A. J., July, 1915, p. 312. ' Appendix, p. ovu.
278 INTERNATIONAL LAW
chant vessels " for the mounting of guns not exceeding 6 inch
calibre."
Many of the problems involved in the use of armed mer-
chant vessels still remain unsolved.^ It would seem that the
ultimate and logical conclusion will be that vessels of war,
whether surface or under-sea vessels, must conform to the laws
of war, and merchant vessels must remain merchant vessels
and conduct themselves accordingly.
117. Capture, Destruction, and Ransom
Prior to the World War, 1914, for more than one hundred
years the capture of private property at sea was regarded with
disfavor both on the continent of Europe and in America.
(a) The attitude of the United States is shown by the pro-
vision in the Treaty with Prussia of 1785, whereby merchant
The ezempUon vessels of either state are to pass " free and un-
from Mptnre molested." ' John Quincy Adams, in 1823,
and iiroperty asked England, France, and Russia to exempt
At tea. hostile private property from capture. The
proposition was not accepted.' The United States withheld
its approval of the Declaration of Paris of 1856 because private
property was not exempted from capture. The resolution
in the United States House of Representatives of Mr. Gillett
of Massachusetts, of April 25, 1898, exempting merchant ships
from capture, failed to pass, the argiunent being advanced
that Spain had shown a lack of reciprocity. On April 28, 1904,
the United States Congress passed a resolution favorable to the
exemption of innocent private property at sea. States in prac-
tice have attempted to introduce the principle of exemption
of private property from capture, as at the inception of the
Franco-German War in 1870. The American delegates to the
Second Peace Conference at The Hague strenuously endeavored,
1 2 Hyde. pp. 402. 466. * 2 Treaties, 1477.
*7 Moore, i 1198.
CONDUCT OF HOSTILITIES 279
but without success, to induce the powers represented to exempt
private property at sea from capture. In recent years the
principle of exemption of private property from capture has
received decreasing support.
Late declarations and regulations provided that officers
and crews of captured enemy merchant vessels might be made
prisoners of war, if by training or enrollment they would be
inunediately available for naval service.^
Passengers on such vessels were to be given all convenient
consideration.'
Any person might be detained as a witness.
At The Hague in 1907, by Convention ratified only by about
one half of the states, more general rules were proposed.'
(6) Capture is complete when the hope of recovery has
ceased and surrender has taken place. It was long held
that twenty-four hours ^ of possession constituted valid
capture. In earlier times the capture was com-
VaUd capture. . .
plete when the property seized was brought
within the firm possession of the captor, as within a camp,
fortress, fleet, etc. This rule seems to be more equitable, as
the effective possession is a better ground than the lapse of time.
The evidence of intention to capture must be shown by
some act, such as the placing of a prize crew or prize master
on board a captured vessel, though the vessel has been held
to be under the control of the captor, even when by reason
of the weather no one has been placed on board. ^
(c) The captor should bring his enemy prize into port for
adjudication by the court because there may be neutral prop-
_ ^^ . erty or rights involved. The prize is to be dis-
▼easel as posed of only by state authority.
^^"^' (d) However, an enemy's vessel may be de-
stroyed when it is no longer seaworthy, when it impedes
1 Japanese Regulations. 1904, Art. 50. ' 75t^., Art. 69.
'Appendix, p. Izzziv. Ch. III. * The Orotius, 9 Cr., 368, 370.
280 INTERNATIONAL LAW
unduly the progress of the capturing foreei when its recapture is
threatened by the enemy, when the capturing force is unable
DMtnietloii of to place a sufficient prize crew on board without
'^"•' impairing too much its own efficiency, and when
a port of the capturing force to which the prize may be brought
is too far away.^ Before destruction the personnel must be
placed in safety. The United States, in the War of 1812,
directed its officers to destroy all the enemy's vessels captured,
unless very valuable and near a port. This was necessary on
account of its lack of forces.* During the World War destruc-
tion of vessels without due regard to law was common.'
(e) Sometimes the original owner was allowed to ransom by
repurchase, property which had been captured. In such case
^ ^ , the transaction was embodied in a " ransom bUl,"
regard to by which the master agreed that the owner would
raoMiB. p^y ^ ^jj^ captor a certain sum of money. A
duplicate copy of this bill served as a safe-conduct for the ran-
somed vessel so long as there was no departure from its terms
in regard to the course to be sailed, the ports to be entered, the
time of sailing, etc. The contract was not violated when the
ransomed vessel was driven from her course by stress of weather
or by circimistances beyond her control.
The captor might take from the captured vessel a hostage for
the fulfillment of the ransom contract. Should the captor's
vessel be taken with the hostage and ransom bill on board
by a vessel of the enemy, the ransom bill is discharged. Some
of the European states forbid the practice, others limit it, and
others, like the United States, no longer resort to ransom.
118. Aerial Warfare
(a) Balloons were used in war in the eighteenth and nine-
1 See rules of the " Inst, of Int. Law." 1882, *' Annuaire/* 1883. p. 221 ;
tbid,. 1913, p. 669.
* Bee Sec. 136 (h) for destruction of neutral prises, p. 328.
* Fauohille. 1383.
CONDUCT OF HOSTILITIES 281
teenth centuries, but it was not till the twentieth century that
Bftriy war the usc of air in time of war became of great im-
use of air. portance. Certain questions were raised during
the Franco-Prussian War in 1870. The Germans threatened to
treat observers in balloons as spies, but such persons lacked
the essential attributes of spies and none were ever executed.
Important persons also passed over the siege lines about Paris
in balloons.
(6) By the declaration of the Hague Conference in 1899
" the contracting parties agree to prohibit, for a term of five
Twentieth years, the launching of projectiles and explosives
centonr rules. fj.Qjju balloons or by other new methods of a
similar nature." This declaration was renewed at the Hague
Conference of 1907, but was not generally ratified, owing to
the fact that much progress in the use of aircraft had
been made in the period between the two conferences. Even
though the provisions of the declaration expired by limita-
tion during the Russo-Japanese War in 1904, both parties contin-
ued to observe its obligations. Convention IV of 1907, Liaws
and Customs of War on Liand, referring to bombardment,
was expanded by the insertion of the words "by whatever
means " so that the article read : " Art. 25. The attack or
bombardment, by whatever means, of towns, villages, habita-
tions or buildings which are not defended, is prohibited. " Some
maintained that even though these were rules for war on land,
this article covered aerial bombardment. Conferences upon
aerial matters have been frequent since 1907. The Institute of
International Liaw has considered the laws for the air at several
meetings. The development of law has in general tended to-
ward the maintenance of the idea that jurisdiction in the air
belongs to the subjacent state.^ The Sub-Committee appointed
at the Peace Conference in 1919 accepted this principle. Ac-
cordingly the general principles as to the conduct of war would
» N. W. C. 1912, p. 66.
282 INTERNATIONAL LAW
also apply to aerial warfare. The Conference on Limitation of
Armament, Washington, 1922, did not consider it expedient to
draft detailed regulations for aerial warfare.
(c) During the World War aircraft were generally used.*
Each belligerent made air raids in the opponent's territory and
each accused the other of unlawful acts. Some neutral states
early in the War prohibited entrance of foreign
World War. balloons and aircraft above their jurisdiction, e.g.
Switzerland, August 10, 1914; United States, as
to Panama Canal Zone, November 13, 1914. When the United
States entered the World War domestic legislation forbade
alien enemies to possess, use, or operate any aircraft, wireless
apparatus or signaling device. Great Britain presimied hostile
intent in any enemy aircraft approaching a merchant vessel.
The Netherlands interned belligerent aircraft alighting in
Dutch jurisdiction.
119. PostUminium
(o) The word " postliminiimi " is derived from the Roman
Law idea that a person who had been captured and after-
Thejut wards returned within the boundaries of his
postUminium own state was restored to all his former rights,
for jxis postliminium supposes that the captive
has never been absent.* The attempt to incorporate this fiction
into international law has obscured the fact for which it stands.
The fact is that the rights of an owner are suspended by hostile
occupation or capture. These rights revive when the occupation
or capture ceases to be effective. Acts of the enemy involving
the captured person or property while in the enemy's possession
are not necessarily invalidated if by the laws recognized by civil-
ized states these acts were within his competence. Thus taxes
paid during a hostile occupation or penalties for crime imposed
^ 1 Gamer, pp. 458 et aeq. * Justinian, I, zii, 6.
CONDUCT OF HOSTILITIES 283
by the invader are held to discharge the obligation as if imposed
by the regular authorities.
(6) When the restoration of the property or territory which
has been in the captor's possession is accomplished by a party
Rastontkm of ^^^^ ^^*^^ ^® owner, the service of restoration
property or should receive proper acknowledgment as in
*"* other cases of service. If territory is restored
through the cooperation of an ally, the conditions of the alliance
will determine the obligation of the original possessor.
(c) Most states have definite rules as to the restoration of
ships, as well as other property, and the granting of salvage.
The United States provides that when any vessel or other
property already captured shall be recaptured, the same not
Restoratioa having been condemned as prize before recapture,
ofihipe. ^g court shall award salvage according to law
and the circumstances of the case, but not to contravene
any treaty.^ When the original crew of the vessel arise
and take the vessel from their captors, it is called a rescue
and the crew is not entitled to salvage. When an American
ship, on a voyage to London in 1799, was captured by the French
and afterward rescued by her crew, the British sailors working
their passage to London in the ship were allowed salvage.^
While Prussia was in possession of a section of France during
the Franco-Prussian War of 1870, Prussia contracted with cer-
tain persons for a sale of a portion of the public forests in France.
The purchasers paid for the privilege of felling the forests,
but had not completed the cutting of the trees when the Prussian
occupation ceased. The purchasers claimed that they had the
right to complete their contract, but France maintained that
her rights revived when the Prussian occupation ceased^ and
this position was accepted by Prussia in an additional article
to the treaty of peace of December 11, 1871.
> 7 U. 8. Comp. St8. § 8426. < The Two Friends, 1 C. Rob., 271.
284 INTERNATIONAL LAW
120. Prisoners and Their Treatment
(a) " All persons- who are of particular and sin^lar use and
benefit to the hostile army or its government " ^ are liable to
capture. Levies en masse are now treated as public enemies.
Who may be Within recent years persons who by reason of their
made pritonen. trades or training may be of special use to the
enemy are included among those liable to capture; as the
personnel of captured merchantmen unless exempt by special
convention.
It is now a fundamental principle of law that the treatment
of a prisoner of war is not to be penal, unless the penalty is
imposed for some act committed after his capture. A prisoner
of war is subject to such restraint as is necessary for his safe
custody. A prisoner of war may be killed while attempting
to escape or may be disciplined for attempting to escape, but
if he escapes and is recaptured, no punishment other than such
confinement as is necessary for his safe keeping is allowable.
(b) It is forbidden to declare that no quarter will be given.
Those who have violated the laws of war or the principles
Quarter and ^^ humanity are liable to retaliation as a measure
retaUatioiL of protective retribution only. It " shall only
be resorted to after careful inquiry into the real occurrence, and
the character of the misdeeds that may demand retribution." ^
(c) " Prisoners of war may be interned in a town, fortress,
camp, or any other locality, and bound not to go beyond certain
fixed lines; but they can only be confined as
an indispensable measure of safety and only while
the circumstances which necessitate the measure continue to
exist." »
(d) "The state may utilize the labor of prisoners of war
according to their rank and aptitude, officers excepted. Their
1 Instr. U. S. Armies, 60 ; Appendix, pp. zi, xii.
* Instr. U. S. Armies, 28. See Appendix, p. vii.
* Appendix, p. Ixiv.
CONDUCT OP HOSTILITIES 285
tasks shall not be excessive and shall have nothing to do with
the military operations. . . . The wages of the prisoners shall
go towards improving their position, and, the
balance shall be paid them at the time of their
release, after deducting the cost of their maintenance." *
{e) The exchange of prisoners of war is a purely voluntary
act on the part of the states at war. This takes place under
an agreement called a " cartel." The exchange
Exchange. iii* i l# i
IS usually rank for rank, number for number,
value for value, though it is sometimes necessary to agree upon
certain conventional values when those of the same rank are
not among the captives, as in 1862, when the United States
exchanged a captain in the army for six privates, etc.
(/) Prisoners of war may be released on parole, which is a
promise to do or to refrain from doing certain acts in consider-
ation of the grant of freedom in other respects.
The punishment for breach of parole may be
determined by the court.*
(g) The sick and wounded taken in the field become prisoners
of war. Their treatment is now generally determined by the
Sick and provisions of the Geneva Convention of 1906.
wounded. This convention provides for the immunity and
for protection of hospital, ambulances, and those engaged in
the care of the sick and wounded, and for distinctive marks for
this service, particularly the Red Cross.'
(A) The Hague Convention provides for a Bureau of In-
Bnreatt of formation to answer inquiries, to preserve property
Information. found on battlefields or left by prisoners, etc.^
(i) The treatment of prisoners of war during the World
War was much criticized. Often the rules upon which states had
1 Appendix, p. Ixiv.
* See, as to prisonera of war. Appendix, pp. xxiii, ixiv.
*For detaila, nee Geneva Convention, Appendix, p. xxxiii; HoUb, "The
Hague Peace Conference," 120 et aeq.
* Appendix, p. Ixv.
286 INTERNATIONAL LAW
agreed were not observed. The rules themselves were in some
respects defective or not sufficiently full. This was evident in
PrUonen in ^® Beme Conference on Prisoners of War which
World War. reached an agreement embodied in 185 articles *
on November 11, 1918.
121. Non-hostile RelationB of Belligerents
(a) In time of war it is necessary that belligerents should have
certain relations not strictly hostile. Negotiations are often
« * *— opened under a flag of truce. In regard to this
VuLtL oi tmco.
the Brussels Code, Article 43, with which Article
XXXII of the Hague Convention of 1907 respecting the Laws
and Customs of War on Land is in practical accord, provides : —
"An individual authorized by one of the belligerents to confer
with the other on presenting himself with a white flag, accompanied
by a trumpeter (bugler or drummer), or also by a flag-bearet, shall
be recognized as the bearer of a flag of truce. He as well as the
trumpeter (bugler or drummer), and the flag-bearer, who accom-
panies him, shall have the right of inviolability."
He may be accompanied, " if necessary, by a guide and an
interpreter." A commander is not obliged to receive the
bearer of a flag of truce, and may take necessary measures to
prevent injury on account of his presence. He may be blind-
folded, detained at an outpost, or be put under other restric-
tions. If the bearer take advantage of his privilege to spy uix)n
the enemy, he is liable to treatment as a spy, though he may re-
port such military information as he may acquire without effort
on his own part. If a bearer present himself during active
operations, firing need not necessarily cease, and the bearer is
liable to such consequences as his act may bring upon himself.
"In operations afloat the senior ofiicer alone is authorized to
dispatch or to admit communication by flag of truce; a vessel
1 13 A. J. I. L. Sup., Jan., 1919. No. 1 ; 2 Garner, chaps. XXI-XXII.
CONDUCT OP HOSTILITIES 287
in position to observe such a flag should communicate the fact
promptly. The firing of a gun by the senior officer's vessel is
generally understood as a warning not to approach nelSarer. The
flag of truce should be met at a suitable distance by a boat or
vessel in charge of a commissioned officer, having a white flag
plainly displayed from the time of leaving until her return." ^
(6) Cartels are agreements made to regulate intercourse
during war. Such conventions may regulate postal and tele-
graphic communication, the reception of flags
of truce, the exchange of prisoners, the care and
treatment of the same and of the sick and wounded.
A cartel ship is a vessel sailing under a safe-conduct for
the purpose of carrying exchanged prisoners. When thus em-
ployed the vessel is not subject to seizure, although this exemp-
tion does not extend to a voyage from one port to another
in her own state for the sake of taking on prisoners. The
inununity is lost if the vessel departs from the strict line of
service by engaging in ordinary commerce, transportation, or
hostile acts.* Such a vessel may carry one gun for the purpose
of salutes.
(c) Passports, safe-conducts, and safeguards are sometimes
given in time of war.
A passport is a written permission given by the belligerent
government or by its authorized agent to the subject of the
p^^^^^^^ enemy state to travel generally in belligerent
nfe-condiicts, territory.
and ufegnards. am j ^ • • ^
A safe-conduct is a pass given to an enemy
subject or to an enemy vessel, allowing passage between de-
fined points. Safe-conducts are granted either by the govern-
ment or by the officer in command of the region within which
it is eflFective.'
A safeguard is a protection granted by a commanding officer
> " Intematiooal Law,** Naval War College, 2d ed., p. 93.
* The Ventu, 4 C. Bob., 355. » Appendix, p. rviii.
288 INTERNATIONAL LAW
either to person or property within his command. " Some-
times they are delivered to the parties whose persons or property
are to be protected ; at others they are posted upon the prop-
erty itself, as upon a church, museum, librar>% public office, or
private dwelling." ^ When the protection is enforced by a
detail of men, this guard must use extreme measures, if neces-
sary to fulfill their trust, and are themselves exempt from at-
tack or capture by the enemy.
(d) A license to trade is a permission given by competent
authority to the subject of that authority or to another to
Liceueto carry on trade even though there is a state
*"^*- of war. These licenses may be general or
special. A general license grants to all the subjects of the
enemy state or to all its own subjects the right to trade in
specified places or in specified articles. A special license grants
to a certain person the right to trade in the manner specified
in his license. Neutrals may receive a license to trade in lines
which otherwise would not be open to them.
A general license is granted by the head of the state. A
special license, valid in the region which he commands, so far
as his subordinates are concerned, may be granted by a sub-
ordinate. His superior officers are not necessarily bound by
his act, however.*
It is held that a license must receive a reasonable construc-
tion. In general, fraud vitiates a license ; it is not negotiable
unless expressly made so ; a fair compliance in regard to the
terms as to goods is sufficient ; a deviation from the prescribed
course by a vessel invalidates the license unless caused by stress
of weather or by accident ; and a delay in completing a voyage
within the specified time invalidates the license unless caused
by enemy or the elements.' When a license becomes void, the
vessel is liable to the penalties which would fall upon it if it
had committed the act without license.
1 2 Halleck. p. 361. * The Sea Lion, 5 WaU, 630. • Hall, pp. 938-552.
CONDUCT OP HOSTILITIES 289
(e) The cessation of hostilities for a time is sometimes brought
about by agreement between the parties to the conflict. When
this cessation is for a temporary or miJitary end^
]^S^^^ and for a short time or within a limited area, it
**^» is usually termed a suspension of hostilities.
When the cessation is quite general, for a con-
siderable time, or for a political end, it is usually termed a
truce or armistice.
Acts of hostility done in ignorance of the existence of the
cessation of hostilities are not violations of the agreement
unless there has been negligence in conveying the information
to the subordinates. Prisoners and property captured after
the cessation in a given region must be restored. During the
period of the truce, the commercial and personal intercourse
between the opposing parties is under the same restrictions as
during the active hostilities, unless there is provision to the
contrary in the agreement. The relative position of the parties
is supposed to be the same at the end of the truce as at the
beginning.
Hall says: "The effect of truces and like agreements is
therefore not only to put a stop to all directly offensive acts,
but to interdict all acts tending to strengthen a belligerent
which his enemy apart from the agreement would have been
in a position to hinder." * Late practice accords with the
doctrine that what is not prohibited in the terms of the armis-
tice is permitted if not in the nature of actual hostilities.'
The provisioning of a besieged place during a truce has been
the subject of some difference of opinion. If the conditions of
the truce are to be fair to the besieged party, that party must
be allowed to bring in a supply of provisions equal to the con-
sumption during the continuance of the truce.' At the present
time this matter is usually provided for in the terms of the
truce.
> HaU, p. 685. > Spaight. p. 236. * Calvo. " Droit Int.." ((2440-2446.
290 INTERNATIONAL LAW
A truce or other form of cessation of hostilities, if for a
definite time, comes to an end by the expiration of the time
limit ; if for an indefinite time, by notice from one party to
the other or is terminated by the violation of the conditions
by either of the parties. A violation of a truce by an in-
dividual renders him liable to such pimishment as his state may
^ prescribe.^
(/) The armistice of Roiunania with Germany, Austria,
Turkey, and Bulgaria, December 9, 1917, and of Russia with the
same states on December 16, 1917, were military in character.
The same may be said of the armistice of Bulgaria, September
29, 1918, and of Turkey, October 30, 1918, with the Allies. The
armistice between Austria-Hungary and the Allied and Asso-
Armistices in ciated Powers, November 3-13, 1918, made de-
WoridWar. tailed provision for surrender of or withdrawal
from certain areas and for surrender of material and per-
formance of certain services. The armistice between Ger-
many and the Allied and Associated Powers was very com-
prehensive, involving provisions for surrender, and forming a
basis for peace negotiations.
(g) A capitulation is an agreement defining the conditions
of surrender of military forces, places, or districts within the
command of an officer. Such agreements are
purely military and can have no political force.
The capitulation agreed upon between Generals Sherman and
Johnston, in 1865, was not sanctioned because it involved
political provisions. By the capitulation of Santiago, July,
1898, the American commander agreed to transport the Spanish
troops to Spain. The conditions involved in a capitulation
may vary greatly, but at the present time it is usually possible
to obtain the sanction of the political authority before entering
upon an agreement, owing to the improved methods of com-
munication. It is therefore hardly probable that the terms of
1 2 Halieck. 345 el aeq.
CONDUCT OF HO^TIUTIES 291
capitulations will be set aside, as in the celebrated case of £1
Arisch, in 1800. Agreements made by officers not possessing
proper authority or made in excess of authority, are called
sponsions or sub spe ratif and require ratification or acceptance
by the state to render them effective. ^
i Soe 1 HaUeck, 297.
OUTLINE OF CHAPTER XXI
TERMINATION OF WAR
122. METHODS OF TERMINATION OF WAR.
123. BY CONQUEST.
124. BY CESSATION OF HOSTILmES.
126. BY A TREATY OF PEACE.
(a) Matters covered by a treaty of peace*
(b) When a treaty of peace is eff ectiye.
292
CHAPTER XXI
TERMINATION OF WAR
122. Methods of Terminatioii
War may come to an end, (1) by the complete submission
of one of the parties to the conflict or by conquest, (2) by the
cessation of hostilities between the parties to the conflict, or
(3) by a treaty of peace duly concluded.^
The object of war in early times was often conquest, and the
conflict terminated only with the submission of one of the
parties. This end is at present usually disavowed, and the ob-
ject of war is proclaimed to be some purpose that will meet with
as little disapproval as possible.' The conditions under which
the war will be brought to an end will usually be in some measure
determined by the object for which the war was undertaken.
123. By Conquest
Conquest in the complete sense, as in the case of the de^
beUatio of the Romans, is not now common.' This implies a
submission of one of the parties without condition. There
have been examples of absorption of the sovereignty of the
vanquished state in recent times, as in the Prussian Decree
of September 20, 1866, by which conquered Hanover, Hesse,
Nassau, and Frankfort were incorporated into the Prussian
state. Similarly, some of the Italian states were absorbed by
the kingdom of Italy after the Treaty of Villafranca, 1859, and
Madagascar became a part of France in 1896.
Conquest is held to be complete when the fact is evident
> Hefftei^Geffcken, " Droit Int.." II. §§ 176-190.
* N. W. C. 1017, 15 ; see above, sec. 90. ' FhiUipeon, pp. 9 ff,
293
294 INTERNATIONAL LAW
from actual, continued, and recognized possession. All of
these evidences may not be present in a given case, but if the
intention and the fact of the conquest and the submission are
fully shown, it is sufficient to constitute validity.
124. By Cessation of Hostilities
Certain wars have terminated by the simple cessation of
hostilities. Cases of such termination are rare. Such a method
leaves in doubt the relations of the parties to the conflict, and
occasions inconvenience to all states which may have inter-
course with the contestants. The war betweep Sweden and
Poland in 1716, and also the war between France and Spain in
1720, came to an end in this way. The war between Spain
and her American colonies ceased in 1825, but diplomatic rela-
tions were not established tiU 1840, and the independence of
Venezuela was not recognized till 1850. After the hostilities
between France and Mexico, 1862-1867, no diplomatic relations
were entered into till 1881. It is only fair to neutrals that a
declaration of the conclusion of hostilities should be made.
While hostilities between the United States and Germany
ceased under the Armistice, November 11, 1918, the state of
war continued till exchange of Peace Treaty ratifications three
years later.
126. By a Treaty of Peace
War is most often terminated by a treaty of peace, which is
usually a diplomatic agreement upon the manner of cessation
of hostilities and upon the conditions of the reestablishment
of friendly relations.^ In recent years such treaties have often
been preceded by preliminary agreements. These are some-
times preceded by an armistice in order that the terms may
not be changed from day to day by the ciurent fortunes of
war, as was the case in the discussions pending the Treaty of
1 Phillipson, Tennination, 155.
TERMINATION OP WAR 295
Westphalia in 1648. No armistice was made for facilitating
the Russo-Japanese peace negotiations in 1905. In the war
between China and Japan, in 1894-1895, an agreement for the
suspension of hostilities was made on March 30, 1895, but the
treaty of peace was not signed till April 17th. These pre-
liminary agreements may sometimes be made through the
friendly offices of a third power, as in the protocol of August
12, 1898, in regard to the suspension of hostilities between
Spain and the United States. The ambassador of France
acted for Spain.^ These preliminary agreements can be con-
cluded only by those persons delegated for the purpose, and
they are as binding as any international agreement in the
matters upon which they touch.
After preliminary correspondence with the United States
through the Swiss Minister, Germany expressed its willingness
to accept the " fourteen points " set forth in the message of
President Wilson, January 8, 1918, " and in his subsequent pro-
nouncements " '' as a basis for the peace negotiations." ' An
armistice was signed November 11, 1918. Treaty negotiations
among the Allied and Associated Powers began January 18,
1918. The draft of the treaty was submitted to German repre-
sentatives May 7, 1919, and signed June 28, 1919.
(o) A treaty of peace usually covers, (1) the cessation of
hostilities, (2) the subjects which have led to war,' (3) agree-
ments for immunity for acts done during the
covendby war without sufficient authority or in excess of
•^!**^®' authority. Such acts might otherwise become
bases for civil or criminal process. Acts not
consequent upon the existence of war, but such as are action-
able under the ordinary laws of the state, as for violation of
private contract, ordinary debts, etc., are not included unless
« 30 U. 8. 8tB. at I^ge, 1742. » Sup. A. J. I. L. vol. 13, p. 86.
* The Treaty of Ghent. Dec. 24, 1814. between U. S. and Great Britain is
a marked exception. 1 Treaties. 612; Wheaton, "Hist. Int. Law," 585;
Schurs, *• Henry Clay," I, pp. 105 «/ aeq.
296 INTERNATIONAL LAW
there is a direct stipulation to that effect. This immunity
is commonly called amnesty. (4) Provision for the release
of the prisoners of war is often included. (5) The renewal
of former treaties is provided for in many peace agreements.
(6) Special provision may be made for cession of territory,
indemnity, boundaries, or other contingent points.^
(6) A treaty of peace is usually held to be effective from the
date of signature, or from the date set in the treaty. Pro-
visions fixing the time at which hostilities shall cease at differ-
When a treaty ^^^ points are common. Acts of war committed
of peace is after the conclusion of peace or after the
official notice of the termination of hostilities,
are void.^ The Treaty of Frankfort, 1871, provides that
maritime captures not condemned at the conclusion of the
war are not good prize.
" The general effect of a treaty of peace is to replace the
belligerent countries in their normal relation to each other." '
In case no stipulations or public interests are to the contrary, the
doctrine of uti possidetis applies, by which the property and
territory in the actual possession of either of the belligerents
at the conclusion of the war vests in the one having possession."^
Private rights suspended during the war revive on the con-
clusion of peace. Though it was once held that debts could be
confiscated during war, this is now nowhere maintained.^ In
such cases the obligation revives on the conclusion of peace,
and by the statute of limitations the period of the war is not
reckoned in the time specified as the period at which debts
become outlawed.*
1 Treaty between Spain and U.S., Dec. 10, 1808, 30 U. S. Ste. at Large. 1754;
2 Treaties, 1690.
«Cafle of Svnneherd, 1801, 1 Kent Com., 173, note (6); Sophie, 1 Kent
Com., 174 : 6 C. Rob., 138.
* Hall. p. 598. « Sanchez r. United States, 216 U. S. 167 ; 2 Hyde, 856.
* See Phillipson, pp. 322 ft., for succession, public debts.
* Hanger v. Abbott, 6 Wall. 532.
PART FIVE
INTERNATIONAL LAW OF NEUTRALITT
OUTLINE OF CHAPTER XXH
DEFINITION AND fflSTORY OF NEUTRALITY
126. DEFINITION OF NEUTRALITY.
127. FORMS OF NEUTRALITY AND OF NEUTRALIZATION.
(a) Neutralized states are bound to refrain from offendye hos-
tilities.
(1) Neutralization of Switzerland and Belgium.
(h) A portion of a state may be the subject of an act of neutraliza-
tion.
(c) The neutralization of certain routes of commerce.
(d) The Geneva Convention of 1906 neutralized persons and
things.
128. HISTORY OF NEUTRALITY.
(a) Early conceptions of neutrality.
(h) The United States and the principles of neutrality.
129. DECLARATION OF NEUTRALITY.
180. TWO CLASSES OF RELATIONS BETWEEN NEUTRALS
AND BELLIGERENTS.
(a) Between neutral states and belligerent states as states.
(b) Between the states and individuals.
298
CHAPTER XXn
DEFINITION AND fflSTORY OF NEUTRALITY
126. Definition of Neutrality
Neutrality is the relation which exists between states which
take no part in the war, and the belligerents.^ Impartial
treatment of the belligerents is not necessarily neutrality.
The modern idea of neutrality demands an entire absence of
participation, direct or indirect, however impartial it may be.
127. Forms of Neutrality and of Neutralization
The first form of neutrality is what was formerly known as
perfect neutrality, in distinction from imperfect neutrality
which allowed a state to give to one of the belligerents such aid
as it might have promised by treaty entered into before and
without reference to the war. At the present time the only
neutrality that is recognized is perfect, i.e. an entire absence of
participation in the war. Costa Rica stating on April 12, 1917,
a year before declaring war against Germany, that it would
permit " the use of its waters and ports for war needs by the
American Navy " could not legally claim to be neutral.^ A
second form of neutrality is commonly known as armed neutral-
ity. This implies the existence of an understanding, on the
part of some of the states not parties to the contest, in ac-
cordance with which they will resist by force certain acts which
a belligerent may claim the right to perform. The armed neu-
tralities of February 28, 1780, and of December 16, 1800, de-
fended the principle of " free ships, free goods."
Neutralization is an act by which, through a conventional
agreement, the subject of the act is deprived of belligerent
» The Three Friends, 166 U. S. 1, 52. « N. W. C. 1917, 77.
2^9
300 INTERNATIONAL LAW
capacity to a specified extent. Neutralization may apply in
various ways.
(o) Neutralized states are bound to refrain from offensive
hostilities, and in consequence cannot make agreements which
Offamiye "^^ demand such action. Thus it was recog-
hottiuties nized that Belgium itself, a neutralized state,
neotraUzed could not guarantee the neutrality of Luxem-
statM. bu,.g jn ^hg Treaty of London, in 1867. Bel-
gium was, however, a party to the Treaty of Berlin of 1885,
agreeing to respect the neutrality of the Kongo State. This
agreement " to respect " did not carry with it the obligation
to defend the neutrality of the Kongo State.
The important instances of neutralization were those agreed
upon by European powers. By the declaration signed at
NeotnOisation V^^'^'^*''* March 20, 1815, the powers (Austria,
of Switzerland France, Great Britain, Prussia, and Russia)
""' " acknowledged that the general interest de-
mands that the Helvetic States should enjoy the benefits of
perpetual neutrality," and declared " that as soon as the Hel-
vetic Diet should accede to the stipulations " prescribed, her
neutrality should be guaranteed.^ The Swiss Confederation
acceded on May 27, 1815, and the guaranteeing powers gave
their acknowledgment on November 20, 1815.* The powers
also guaranteed the neutrality of a part of Savoy at the same
time. The neutralization of Belgium was provided for by
Article VII of the Treaty of London, of November 15, 1831,
" Belgium, within the limits specified in Articles I, II, and IV,
shall form an independent and perpetually Neutral State. It
shall be bound to observe such Neutrality towards all other
States." • Like provision was in the treaty of 1839.*
(6) A portion of a state may be the subject of an act of
> I Hcrtslet. 64.
* Ibid., 370 ; see alAO " La Neutrality de Suisse," S. Biury, R. D. I., II, 636.
* II Hertslet, 863.
* Wilson, Neutralization, 4 Yale Review, 474.
DEFINITION AND HISTORY OP NEUTRALITY 301
neutralization, as in the case of the islands of Corfu and Paxo
by the Treaty of London, of March 29, 1864. By Article II,
" The Courts of Great Britain, France, and Russia, in their
H tnUzAtkm character of Guaranteeing Powers of Greece
of a portkm of declare, with the assent of the Courts of Austria
and Prussia, that the Islands of Corfu and Paxo,
as well as their Dependencies, shall, after their Union to the
Hellenic Kingdom, enjoy the advantages of perpetual Neu-
trality. His Majesty the King of the Hellenes engages, on his
part, to maintain such Neutrality." ^
(c) The neutralization of certain routes of conmierce has
often been the subject of convention. The United States
Kentralizttioii guaranteed the " perfect neutrality " * of the
of routes of means of trans-isthmian transit when the State
of New Granada controlled the Isthmus of
Panama in 1846. By the Treaty of 1867 with Nicaragua the
United States guaranteed " the neutrality and innocent use '*
of routes of conunuqication across the state of Nicaragua.'
The Nine Powers by the Convention of Constantinople, of
October 29, 1888, though Great Britain made certain reserva-
tions, agreed, by a conventional act upon '' a definite system
destined to guarantee at all times, and for all the powers, the
free use of the Suez Maritime Canal." * Full provisions for
the maintenance of the neutrality of the canal were adopted
at thb time also. Substantially the same rules were embodied
in the Treaty between the United States and Great Britain,
concluded November 18, 1901, in regard to the construction of
the canal across the Isthmus of Panama.
(d) The Geneva Convention of 1906, superseding that of
1864, made inunune persons and things employed in the amelio-
> m Hertslet, 1502.
< Art. XXXV, Treaty of Deo. 12. 1846 ; Treaties of U. S.. 204.
• Art. XV, Treaty of Jan. 21, 1867 ; Treaties of U. S.. 1784.
* Pari. Papers, 1880, Conunercial, No. 2. See also Holland, " Studies in
Int. Law," p. 260.
302 INTERNATIONAL LAW
ration of the condition of the sick and wounded in the time of
The 6«ne?a war.^ By the Hague Convention of 1907 hospital
CoBTantioii. ships properly certified and designated by flags
and by bands of color on the outside are exempt from cap-
ture by general practice.*
128. History of Neutrality
Neutrality as now understood is of recent growth. In early
times, and in general throughout the Middle Ages, the fear
of retaliation alone deterred belligerent states from hostile action
against states with which they were formally at peace. A
belligerent in the prosecution of war might disregard the terri-
torial, personal, or property rights in a neutral state without
violation of the principles of public law then accepted.
(a) A gradual formulation of principles which gave the
basis of a more equitable practice came through the custom
^. of making treaty provisions in regard to the con-
tioiu of duct of one of the parties when the other was at
*•" *y- ^a.r with a third state. Thus it was usually
provided that no aid should be given to the third state. By
the end of the seventeenth century that which had formerly
been a matter of treaty stipulation became quite generally
accepted as a rule of action. Grotius, in 1625, gives only about
a fourth of a short chapter to the consideration of the duties
of the neutral toward the belligerents and the balance of the
same chapter to the duties of belligerents toward those not
parties to the war. Grotius maintains that '' it is the duty
of those who have no part in the war to do nothing which may
favor the party having an unjust cause, or which may hinder the
action of the one waging a just war, . . . and in a case of doubt
to treat both belligerents alike, in permitting transit, in fur-
nishing provisions to the troops, in refraining from assisting the
> Appendix, pp. xxxiii-zxxvii, Articlee. 1-16. * Ibid, p. IzxvilL
• *• De Jure BelU ac Pacis," Lib. Ill, C. XVII. iii, 1.
DEFINITION AND HISTORY OF NEUTRALITY 303
besieged." ' In Barbeyrac's note to Pufendorf, 1706, the
discussion shows that the idea of neutrality is clearer, but still
confused by the attempt to admit a variety of qualified forms by
which a state may be neutral in some respects and not in others.^
Bynkershoek in 1737 said, " I call those rum hosUs who are of
neither party." ' This statement of Bynkershoek furnishes a
convenient starting-point for his successors. Vattel, in 1758,
accepting this definition, also says that a state may give such
aid as has been promised in a treaty of alliance previously made
with one of the states, and still preserve exact neutrality
toward the other state.'
(6) By Article XVII of the Treaty of Amity and Conunerce
between the United States and Prance, in 1778, " It shall be
lawful for the ships of war of either party, and
The Unitod • • i • i i
stttMuidthe privateers, freely to carry whithersoever they
'^toSS^ please the ships and goods taken from their
enemies; ... on the contrary, no shelter or
refuge shall be given in their ports to such as shall have made
prize of the subjects, people or property of either of the parties,"
except when driven in by stress of weather. By Article XXII
of the same treaty, foreign privateers were not allowed to be
fitted out or to sell their prizes in the ports of either party.
In 1793 M. Genet, the Prench minister, began to fit out priva-
teers, to give conunissions to citizens of the United States to
cruise in the service of Prance against the British, and to set
up prize courts in the Prench consulates. He justified himself
under the provisions of the Treaty of 1778. His action threat-
ened to bring the United States into war with Great Britain and
led to the enunciation of the principles by the United States
authorities, of which Canning in 1823 said, " If I wished for
a guide in a system of neutrality, I should take that laid down
1 " Le Droit de la Nature et dos Gens," Liv. VIII, C. VI, vii, n. 2.
* " QoaMtionefl Juria Publici." I. ix.
• '* Droit des Gena/' III. viii.
304 INTERNATIONAL LAW
by America in the days of the presidency of Washington and the
secretaryship of Jefferson." ^ This system, set forth in the
President's Proclamation of December 3, 1793, declares that,
in the war of France and the European powers, " the duty
and interest of the United States require that they should with
sincerity and good faith adopt and pursue a conduct friendly
and impartial toward the belligerent powers." * While the
Proclamation does not mention "neutrality," the orders and
instructions issued in accordance with it use the word. By the
Act of Congress of June 5, 1794, and by subsequent acts codified
in 1818,' the United States assumed a position which marks an
epoch in the history of neutrality. The principles then enun-
ciated are the generally ' accepted rules of the present day.
Great Britain passed similar enactments in 1819, and made these
more definite and stringent by the Foreign Enlistment Act
of 1870.*
129. Declaration of Neutrality
In recent years it has become customary to issue procla-
mations of neutrality, or to make known the attitude of the
state by some public announcement. This method publishes
to other states and to the subjects of the state issuing the an-
nouncement the position which the state will take during the
hostilities. Ordinarily some specifications as to what may be
done during the war accompany the proclamation.
In the war between the United States and Spain in 1898,
and in subsequent wars, practically all the leading states of the
world made known their neutrality. Germany, according to
the custom in that state for twenty years preceding, made no
public proclamation, but the neutrality of the Empire was
announced less formally by the Emperor in a speech before
the Reichstag. Germany issued a proclamation in the Russo-
> 5 Speeches, 50. ' 1 Messages and Papers of the Presidents, 156.
» 10 U. S. Omp. Sts. §§ 10, 173-10. 182a. See Appendix, p. cxxxiv.
* 33 and 34 Vict., c. 90, p. 560. See also 2 Loimier, 490.
DEFINITION AND HISTORY OF NEUTRALITY 305
Japanese war, 1904. The British proclamation of April 23,
1898, is, however, a very full statement of the principles which
are to be observed during the hostilities.^
A clause from the Russian Declaration of May 2, 1898, is
an example of the announcement of the general fact of neu-
trality : " It is with keen regret that the Imperial (Jovem-
ment witnesses an armed conflict between two states to which
it is united by old friendship and deep sympathy. It is firmly
resolved to observe with regard to these two belligerents a
perfect and impartial neutrality." *
The neutrality proclamations of the United States in 1914
and 1915 followed in general the form used in 1870, which
stated principles somewhat completely.'
Many of the neutrality proclamations issued during the World
War contained detailed provisions.* A few like that of Italy
of August 3, 1914, merely referred to obligations existing under
international law. Brazil had issued neutrality proclamations
from time to time from August, 1914. In June, 1917, Brazil
revoked these proclamations relating to the German Empire,
though Brazil did not declare war against Germany till October
26, 1917. The revocation was made known to the United States
in a note indicating that the Brazilian act was an evidence of
the " continental solidarity " implied in the Monroe doctrine.*
130. Relations between Neutrals and Belligerents
The relations between neutrals and belligerents naturally
fall into two divisions : —
(a) The relations between neiUral states and belligerent states
as states. These relations are determined by the respect for
sovereignty, by international usage, and by treaties.
* Proc. and Decrees during the War with Spain, p. 31.
* Jbid.^ p. 63. President Cleveland's neutrality proclamations as to the
war in Cuba are isiven in 29 U. S. Rts. at Large, 870, 881.
•N.W.C., 1915.P.7; 1916.P.82. * Ibid., w- 10,15 9t acq. * JMd.. 1917. p. 64.
306 INTERNATIONAL LAW
(b) Relations between the states and indimdtude. These
relations involve : —
(1) Ordinary commerce.
(2) Contraband.
(3) Unneutral service.
(4) Visit and search.
(5) Convoy.
(6) Blockade.
(7) Continuous voyage.
(8) Prize and prize courts.
OUTLINE OF CHAPTER XXIII
RELATIONS OF NEUTRAL STATES AND BELLIGERENT
STATES
181. GBITERAL PRINCIPLES OF THE RELA^ONS BETWEEN
STATES.
182. NEUTRAL TERRITORIAL JURISDICTION.
(a) Inviolability of neutral territory.
{b) Passage of belligerents through neutral territory restricted.
(c) Maritime jurisdiction of a neutral.
(d) Neutral territory as a base of military operations forbidden.
188. REGULATION OF NEUTRAL RELATIONS.
(a) Obligation of neutral state to offer asylum to belligerent troops
seeking refuge.
(b) Right of asylum of a beUigerent vessel in a neutral port.
(c) Internment of a vessel in a neutral port to escape capture.
(d) Ordinary entry depends upon the will of the neutral.
(e) Time of sojourn of vessels usually limited to twenty-four hours.
(1) Regulation by proclamation.
(2) Regulations in regard to vessels with prizes.
(J) Internment of aircraft.
184. NO DIRECT ASSISTANCE BT THE NEUTRAL ALLOWED.
(a) Military assistance on any grounds not now justified.
(b) Furnishing of supplies of war not allowable.
(c) Loans of money forbidden.
(d) Enlistment of troops within the jurisdiction of a neutral state
not permitted.
186. POSITIVE OBLIGATIONS OF A NEUTRAL STATE.
(a) Obligation to restrain hostile acts.
(b) Acts in themselves not necessarily warlike must be judged
by iilference as to their purpose.
(c) Termination of neutral obligations.
803
CHAPTER XXm
RELATIONS OF NEUTRAL STATES AND BELLIGERENT
STATES
131. General Principles of the Relations between States
Of the general principle Wheaton says, "The right of every
independent state to' remain at peace whilst other states are
engaged in war is an incontestable attribute of sovereignty." ^
Equally incontestable is the right of a belligerent state to
demand that a state not a party to the war shall refrain from
all participation in the contest, whether it be direct or indirect.
The modern tendency before the World War was to remove
ifrom the neutral all possible inconveniences which might re-
sidt from war between states with which the neutral is at peace.
The normal relations between neutral and neutral were unim-
paired. As the neutral is at peace with the belligerents, the
relations between the neutral and the belligerents were affected
only so far as the necessities of belligerent operations demand.
During and since the World War the question of the possibility
and desirability of maintaining the principle of neutrality in
future wars has been raised.
132. Neutral Territorial Jurisdiction
(a) One of the earliest principles to receive the sanction of
theory and practice was that of the inviolability of territorial
Uhiutv jurisdiction of neutrals. This principle has been
of neutral liberally interpreted in recent times, and the
tendency has been to make increasingly severe
the penalties for its violation.*
* Wheat D., p. 509. > Treaty of Versailles, Art. 231 et $eq.
ao9
310 INTERNATIONAL LAW
Hague Convention V of 1907 respecting the Rights and
Duties of Neutral Powers provides,
* " Art. 1. The territory of neutral Powers is inviolable ;
(6) ''Art. 2. Belligerents are forbidden to move troops or
convoys of either munitions of war or supplies across the terri-
tory of a neutral Power."
Formerly it was held that the right of passage might be
granted by a neutral to both belligerents on the same terms,
or to one of the belligerents if in accord with an
b«uiger«nts agreement entered into before the war. There
^m^mutrai ^^^ many examples of this practice before the
nineteenth century. Belgium in 1914 properly
declined Grermany's proposal to allow troops to cross to make
war on France. Article 14 of Hague Convention V shows the
present attitude of states. ''A neutral State may authorize
the passage through its territory of wounded or sick belonging
to the belligerent armies, on condition that the train bringing
them shall carry neither combatants nor war material. In such
a case, the neutral State is bound to adopt such measures of
safety and control as may be necessary for the purpose." Such
persons in neutral territory " must be guarded by the neutral
Power, so as to insure their not taking part again in the military
operations." ^
(c) The rules applicable to the maritime jurisdiction of a
neutral are somewhat different from those of the land. The
Maritim neutral does not control with the same absolute
juriidictioii of authority the waters washing its shores and the
land within its boundaries. That portion of
the sea which is within the three-mile limit is for the purposes
of peaceful navigation a part of the open sea. The Netherlands
neutrality proclamation, August 5, 1914, excluded vessels of
war from Dutch jurisdictional waters. The simple passage
of ships of war through these waters may be permitted. All
^ Appendix, p. budy.
RELATIONS OP STATES 311
belligerent acts within the maritime jurisdiction of a neutral
are forbidden.^
The waters which appertain more strictly to the exclusive
jurisdiction of the neutral, such as harbors, ports, enclosed
bays, and the like, are subject to the municipal laws of the
neutral.' Asylum in case of imminent danger is, however,
not to be denied ; otherwise these waters may be open to bel-
ligerent ships of war only on condition that they observe the
regulations prescribed by the neutral. Such regulations must
of course be impartial. These regulations are generally an-
nounced in the proclamations of neutrality, and during the
World War * were for the most part modeled on the Hague Con-
vention of 1907 concerning the Rights and Duties of Neutral
Powers in Naval War.*
(d) Neutral territory may not be used as the base of mili-
tary operations or for the organization or fitting out of warlike
expeditions. In spite of protests much of the Russo-Japanese
War, 1904, was carried on in nominally neutral territory.
Sir W. Scott said in the case of the Tivee Gebroeders that
" no proximate acts of war are in any manner to be allowed to
originate on neutral grounds."' This would
to*°o* ^iSse without doubt apply to filibustering expeditions,
of miutery Many acts are of such nature as to make it im-
to^doL possible to determine whether this principle is
violated until the actor is beyond the jurisdic-
tion of the neutral. In such cases the neutral sovereignty is
" violated constructively." • A second act of this kind might
constitute the neutral territory a base of military operations.
It is diiScult to distinguish in some cases between those ex-
peditions which have a warlike character and those which
cannot at the time of departure be so classed.
> Case of the OenenU Armatrong, 2 Moore, *' Arbita-aUons/' 1071 ; the
Anne, 3 Wheat.. 4^5: 7 Moore, 510, 512, 617, 1089.
s Perels, " Das Seerecht," § 39. * N. W. C. 1916.
* Appendix, p. Izxzvi. > 3 C. Rob., 164. • Hall, p. 644.
312 INTERNATIONAL LAW
In 1828, during the revolution in Portugal, certain troops
took refuge in England. In 1829 these men, unarmed but under
military conmiand, set out from Plymouth in unarmed vessels,
ostensibly for Brazil. Arms for their use had been shipped
elsewhere as merchandise. Off the island of Terceira, be-
longing to Portugal, they were stopped by English vessels
within Portuguese waters, and taken back to a point a few
hundred miles from the English Channel. The Portuguese
then put into a French port. Most authorities are agreed that
the expedition was warlike, but that the British ministers
should have prevented the departure of the expedition from
British waters where they had jurisdiction, instead of coercing
it in Portuguese waters.^
During the Franco-German War of 1870 a large body of
Frenchmen left New York in French vessels bound for France.
These vessels also carried large quantities of rifles and car-
tridges. The Frenchmen were not organized, the arms were
proper articles of conunerce, and the two were not so related
as to render them inunediately effective for war. The American
Secretary held that this was not a warlike expedition. In dis-
cussing this case Hall says, " The uncombined elements of an
expedition may leave a neutral state in company with one an-
other, provided they are incapable of proximate combination
into an organized whole." ^
From 1914 certain neutral states took measures that their
territory might not become a base of operations through the
supplying of war material by their own or by other neutral
vessels to belligerent ships of war.'
While frequent or repeated use has sometimes been regarded
as the test as to a base,* the real test is the nature of benefit or
> 3 Phillimore, 287-299.
* Hall. p. M9. Fnr the case of the Caroline, see Appendix, p. czlix.
« 38 U. S. Stfit. 1220.
*n. S. to Germany, Dec. 24, 1914; Spec. Sup. A. J. I. L., July, 1915. p.
217.
RELATIONS OJ' STATES 313
advantage afforded, e,g, a single shipment of munitions might
more than balance repeated shipments of coal.
133. Regulation of Neutral Relations
The relations between the belligerent and the neutral may
in some respects be regulated by the neutral. Such regula-
tions find expression in neutrality laws, in proclamations of
neutrality, and in special regulations issued under exceptional
circumstances or by joint agreement of several states, as in
the Hague Conventions.
(a) While it is admitted that the belligerent troops may
not use the land of a neutral, yet the neutral is under obliga-
ObUsatkm to tion to offer asylum to those seeking refuge to
wSgeroiS"^ escape death or captivity. It is the duty of a
*rooi»- neutral state, within whose territory conunands,
or individuals, have taken refuge, to intern them at points
as far removed as possible from the theater of war. Interned
troops may be guarded in camps, or fortified places. The ex-
penses occasioned by the internment are reimbursed to the
neutral state by the belligerent state to whom the interned
troops belong.^
(6) In general a belligerent vessel has the right of asylum
p. fc» ^ in a neutral port. It may enter to escape the
avyhimfor perils of the sea or to purchase provisions, and
to make repairs indispensable to the continu-
ance of the voyage.
(c) A vessel may be interned in a neutral port when enter-
Intemment in a ing after defeat by the enemy or to escape cap-
neutniport ^^g. ^^^ jf ;^ j^^g ^^^ j^^^^ within the pre-
scribed time is both by law and in accord with practice liable
to be interned till the end of the war.
The Hague Convention of 1907 concerning Neutral Powers
in Naval War provides that :
1 Appendix, p. Ixziii.
314 INTERNATIONAL LAW
Abt. XXIV. If, notwithsrtanding the notification of the neutral
Power, a belligerent ship of war does not leave a port where it is
not entitled to remain, the neutral Power is entitled to take such
measures as it considers necessary to render the ship incapable
of taking the sea during the war, and the commanding officer of the
ship must facilitate the execution of such measures.
''When a belligerent ship is detained by a neutral Power, the
ofiicers and crew are likewise detained.
''The officers and crew thus detained may be left in the ship
or kept either on another vessel or on land, and may be subjected
to the measures of restriction which it may appear necessary to
impose upon them. A sufficient number of men for looking after
the vessel must, however, be always left on board.
"The officers may be left at liberty on giving their word not to
quit the neutral territory without permission." ^
During the Russo^apanese War of 1904-1905, the Russian
transport Lena in September, 1904, was interned at San Fran-
cisco,' and Admiral Enquist's squadron in June, 1905, was in-
terned at Manila. During the same war the principle of
naval internment was acted upon by China, France, Great
Britain, Germany, and the United States, and recognized by
Japan and Russia, and it was acted upon in later wars. The
Netherlands in the World War interned both water- and air-
craft.
{d) Entry may be prohibited, as by the Netherlands in 1914,
though usually allowed by the neutral, subject to conditions
imposed upon aU belligerents alike.' These condi-
dJ^nSat^ tions Usually allow a vessel to take on necessary
upon wiu of provisions and supplies to enable her to reach the
nearest home port. A regulation of the Hague
Convention of 1907 concerning Neutral Powers in Naval W^ar
provides that:
1 Appendix, p. xo.
• U. 8. For. Rel. 1904, pp. 786-790 ; N. W. C. 1904, pp. 79-98.
* 7 Attomey-OeneralB* Opinions, 122.
RELATIONS OF STATES 315
''Art. XIX. Belligerent war-flhips may only revictual in neu-
tral ports or roadsteads to bring up their supplies to the peace
standard.
''Similarly these vessels may only ship sufficient fuel to enable
them to reach the nearest port in their own country. They may, on
the other hand, fill up their bunkers built to carry fuel when in
neutral countries which have adopted this method of determining
the amount of fuel to be supplied." ^
(e) The time of sojourn is usually limited to twenty-four
hours, unless a longer time is necessary for taking on supplies,
completing necessary repairs, or from stress of weather. Regu-
lations as to the time of departure of hostile vessels from a
Time of neutral port were quite fully outlined in President
■ojoanof Grant's proclamations of August 22 and of
October 8, 1870, during the Franco-Prussian
War. In 1914 the United States* similarly declared that
no vessel of war of either beUigerent should leave the
"waters subject to the jurisdiction of the United States from which
a vessel of the other belligerent . . . shall have previously de-
Regolatioa by parted, until after the eicpiration of at least twenty-
pradammtioa. fQyp hours from the departure of such last-
mentioned vessel beyond the jurisdiction of the United States.
If any ship of war or privateer of either belligerent shall,
after the time this notification takes effect, enter any . . .
waters of the United States, such vessel shall be required . . .
to put to sea within twenty-four hours after her entrance
into such . . . waters, except in case of stress of weather or of
her requiring provisions or things necessary for the subsistence
of her crew, or for repairs ; in any of which cases the author-
ities . . . shall require her to put to sea as soon as possible after the
expiration of such period of twenty-four hours, without permitting
her to take in supplies beyond what may be necessary for her im-
mediate use; and no such vessel . . . shall continue within such
. . . waters ... for a longer period than twenty-four hours
> Appendix, p. Ixxxix.
* For Neutrality PioclamatioDs, 1914, see N. W. C, 1915.
316 INTERNATIONAL LAW
after her necessary repairs shall have been completed, unless within
such twenty-four hours a vessel ... of an opposing belligerent
shall have departed therefrom, in which case the time limited for
the departure . . . shall be extended so far as may be necessary
to secure an interval of not less than twenty-four hours between
such departure and that of any . . . ship of an opposing belligerent
which may have previously quit the same . . . waters. No ship
of war ... of a belligerent shall be detained in any . . . waters
of the United States more than twenty-four hours, by reason of the
successive departures from such . . . waters of more than one
vessel of an opposing belligerent. But if there be several vessels
of opposing belligerents in the same . . . waters, the order of their
departure therefrom shall be so arranged as to afford the oppor-
tunity of leaving alternately to the vessels of the opposing belliger-
ents, and to cause the least detention consistent with the objects of
this proclamation. No ship of war ... of a belligerent shall be
permitted, while in any . . . waters within the jurisdiction of the
United States, to take in any supplies except provisions and such
other things as may be requisite for the subsistence of her crew, and
except so much coal only as may be sufficient to carry such vessel,
if without a sail power, to the nearest port of her own country;
or in case the vessel is rigged to go ynder sail, and may also be pro-
pelled by steam power, then with half the quantity of coal which she
would be entitled to receive if dependent upon steam alone ; and
no coal shall be again supplied to any such ship of war ... in the
same or any other . . . waters of the United States, without special
permission, until after the expiration of three months from the time
when such coal may have been last supplied to her within the waters
of the United States, unless such ship of war . .. . shall, since last
thus supplied, have entered a port of the government to which she
belongs." ^
The tendency at the present time is to make regulations
which shall guard most effectively against any possible use of
neutral maritime jurisdiction for hostile purposes. In the
Spanish-American War of 1898, Brazil provided that in case of
» 38 U. S. St;at 1999.
RELATIONS OP STATES 317
two belligerent vessels : — "If the vessel leaving, as well as that
left behind, be a steamer, or both be sailing vessels, there shall
remain the interval of twenty-four hom^ between the sailing of
one and the other. If the one leaving be a sailing vessel and
that remaining a steamer, the latter may only leave seventy-
two hours thereafter." ^ Brazil adopted the same rule in
August, 1914.
Many states had adopted the practice of absolutely refusing
entrance within their waters to belligerent vessels
recftrdto With prizes, except in case of distress. Some
^^f^^^ states prescribed that, in such cases, the prizes
should be liberated.
The Hague Convention of 1907 respecting Neutral Powers
in Naval War has the following :
"Art. XXI. A prize may only be brought into a neutral port
on account of unseaworthiness, stress of weather, or w^nt of fuel
or provisions.
"It must leave as soon as the circumstances which justified its
entry are at an end. If it does not, the neutral Power must order
it to leave at once ; should it fail to obey, the neutral Power must
employ the means at its disposal to release it with its officers and
crew and to intern the prize crew.
"Art. XXII. A neutral Power must, similarly, release a prize
brought into one of its ports under circumstances other than
those referred to in Article XXI.
"Art. XXIII. A neutral Power may allow prizes to enter its
ports and roadsteads, whether or not under convoy, when they are
brought there to be sequestrated pending the decision of a Prize
Court. It may have the prize taken to another of its ports.
" If the prize is convoyed by a war-ship, the prize crew may go
on board the convoying ship.
"If the prize is not under convoy, the prize crew are left at
liberty." *
» Proc. and Decrees of the War with Spain, Brazil. XVI, p. 15 ; see also Int.
Law Topics, Naval War College, 1916, p. 12. * Appendix, p. Ixzxiz.
318 INTERNATIONAL LAW
The United States and some other powers have not accepted
Article XXIII permitting sequestration, and many neutral
states during the war beginning in 1914 refused this privilege.^
(/) In recent years the treatment of aircraft in time of war
has received much consideration.^ As aircraft move with
greater speed and ease than troops or vessels, the difficulty of
enforcing neutral regulations against the aircraft is correspond-
ingly increased. Internment of belligerent aircraft alighting
Internment in neutral jurisdiction was the common practice
of aircraft j^ the World War. The Swiss Neutrality Ordi-
nance of August 4, 1914, is in accord with accepted principles :
'* (a) Balloons and aircraft not belonging to the Swiss army
cannot rise and navigate in the aerial space situated above our
territory unless the persons ascending in the apparatus are furnished
with a special authorization, delivered in the territory occupied by
the army, by the Commander of the army ; in the rest of the coun-
try by the Federal military department.
" (6) The passage of all balloons and afrcraf t coming from abroad
into our aerial space is forbidden. It will be opposed, if necessary,
by all available means and these aircraft will be controlled whenever
that appears advantageous.
" (c) In case of the landing of foreign balloons or aircraft, their
passengers will be conducted to the nearest superior military com-
mander, who will act according to his instructions. The apparatus
and the articles which it contain ought, in any case, to be seized
by the military authorities or the police. The Federal military
department or the commander of the army will decide what ought
to be done with the personnel and materiel of a balloon or aircraft
coming into our territory through force majeure and when there
appears to be no reprehensible intention or negligence."
134. No Direct Assistance by the Neutral Allowed
The neutral state may not furnish to a belligerent any assist-
ance in military forces, supplies of war, loans of money, or in
any similar manner.
> The Appam, 37 S. Ct. 337. < N.W.C. 1912. pp. 56 €t «ea.
RELATIONS OP STATES 319
(a) Formerly military assistance was often himished to one
of the beUigerents by a state claiming to be neutral on the
Militerv gromid that such action was justified by a treaty
•mmi^^^^^ obligation entered into before the war could be
forUdden. foreseen. This position was supported by some
of the ablest of the authorities of the nineteenth century/ but
is no longer admitted.
(b) It is generally held that a neutral state may not furnish
to one or both of the belligerents supplies of war. As Hall
jjtttaadnK9i ^^y^» "The general principle that a mercantile
saypUM of WW act is not a violation of a state of neutrality, is
pressed too far when it is made to cover the sale
of munitions or vessek of war by a state." *
A case that aroused discussion was occasioned by the action
of the authorities of the United States conformably to a joint
resolution of Congress of July 20, 1868, by which the Secretary
of War was to cause " to be sold, after offer at public sale on
thirty days' notice, . . . the old cannon, arms, and other
ordnance stores . . . damaged or otherwise unsuitable for the
United States military service, etc."' Complaint was made
that sales made under this act during the time of the Franco-
Grerman War were in violation of neutrality. A conmiittee
appointed by the United States Senate to investigate these
charges reported that sales " were not made imder such cir-
cumstances as to violate the obligations of oiu* government as
a neutral power ; and this, to recapitulate, for three reasons :
(1) The Remingtons [the alleged purchasing agents of the
French government] were not, in fact, agents of France during
the time when sales were made to them ; (2) if they were such
agents, such fact was neither known nor suspected by our gov-
ernment at the time the sales were made ; and (3) if they had
been such agents, and that fact had been known to oiu* govern-
> Wheat. D., § 425: Dana, contra, note 203; 1 Kent Com., pp. 49, 116;
Bluntachli, § 759 ; Woolaoy. § 165. > HaU, p. 636. * 15 U. S. Ste. at Large. 259.
320 INTERNATIONAL LAW
ment, or if, instead of sending agents, Louis Napoleon or Fred-
erick William had personally appeared at the War Department
to purchase arms, it would have been lawful for us to sell to
either of them, in pursuance of a national policy adopted by us
prior to the conmiencement of hostilities." ^ This last state-
ment does not accord with the best opinion and doubtless would
not be maintained at the present time. The first and second
claims might justify the sale, though it would be in better ac-
cord with strict neutrality for a state to refrain from all sale
of supplies of war except to another neutral state, during the
period of war between two states, toward which states it pro-
fesses to maintain a neutral attitude. This, of course, does not
affect the rights of commerce in arms on the part of the citizens
of a neutral state not residing in belligerent territory.*
(c) The authorities are practically agreed that loans of
money to a belligerent state may not be made or guaranteed
Loans of money by a neutral state. This does not, however,
forbidden. affect the conunerce in money which may be
carried on by the citizens of a neutral state not residing in
belligerent territory.'
(d) A neutral may not permit the enlistment of troops for
belligerent service within its jurisdiction. This applies to such
EnUstm t f ^^^^^ ^ might assume the proportions of re-
troops not cruiting. The citizens or subjects of a neutral
^ * ' state may enter the service of one of the bel-
ligerents in a private manner.^
136. Positive Obligations of a Neutral State
(a) Not only must a neutral state refrain from direct
assistance of either belligerent, but it must also put forth
positive efforts to prevent acts which would assist a belligerent.
If a state has neutrality laws, it is under obligations to enforce
> 3 Whart., ( 391. * Appendix, p. Ixziv.
* Appendix, p. Izxiv. * Appendix, p. Ixxiii., Articles 4, 5.
RELATIONS OF STATES 321
these laws, and is also under obligations to see that the prin-
ciples generally recognized by international law
rMtnin are observed. Most states make provision for
•■^^ the enforcement of neutrality. In the United
States the President is authorized to employ the land and
naval forces or militia to execute the law.^ Jefferson said that,
" If the United States have a right to refuse the permission to
arm vessels and raise men within their ports and territories, they
are bound by the laws of neutrality to exercise that right, and to
prohibit such armaments and enlistments." ' There can be no
di£Ference of opinion upon the proposition that a neutral state
is bound to restrain within its jurisdiction all overt acts of a
character hostile to either belligerent.
(6) There are, however, many acts which in themselves
have no necessarily warlike character. Whether such acts
are in violation of neutrality must be determined
seiTM not*"" by inference as to their purpose. These acts
necMMfiiy yarj' SO much in character and are of so wide a
range that the determination of their true nature
often imposes severe burdens upon the neutral attempting to
prevent them. The destination of a vessel that is in the course
of construction may determine its character so far as the laws
of neutrality are concerned. If it is for a friendly state which is
at peace with all the world, no objection to its construction and
sale can be raised. If a subject of a neutral state builds a vessel
for one of the belligerents, such an act has sometimes been re-
garded as a legitimate business transaction, at other times as
an act in violation of neutrality. As a business transaction, the
vessel after leaving neutral territory is liable to the risk of
seizure as contraband. As an act in violation of neutrality, the
neutral state is bound to prevent the departure of the vessel by
a reasonable amount of care. The line of demarcation which
determines what acts a neutral state is under obligation to
1 10 U. S. Comp. Sts. § 10.179. > 1 Amer. State Papers, 116.
322 INTERNATIONAL LAW
prevent, and what acts it may allow its subjects to perfonn at
their own risk, is not yet clearly drawn. It is certain that a.
state is bound to use " due diligence " to prevent the violation •
of its neutrality. In the case of the Alabama ^ this phrase was,
given different meanings by the representatives of the United \
States and of Great Britain. The arbitrators declared that*
" due diligence " should be " in exact proportion to the risks
to which either of the belligerents may be exposed from a failure
to fulfill the obligations of neutrality on their part." ' This
definition is not satisfactory, and the measure of care required
still depends upon the circumstances of each individual case, and
is therefore a matter of doubt.
The Hague Convention of 1907 concerning Neutral Powers
in Naval War provides that :
" Art. VI. The supply, in any manner, directly or indirectly,
by a neutral Power to a belligerent Power, of war-ships, ammuni-
tion, or war material of any kind whatever, is forbidden. . . .
"Art. VIII. A neutral Government is bound to employ the
means at its disposal to prevent the fitting out or arming of any
vessel within its jurisdiction which it has reason to believe is in-
tended to cruise, or engage in hostile operations, against a Power
with which that Government is at peace. It is also bound to dis-
play the same vigilance to prevent the departure from its juris-
diction of any vessel intended to cruise, or engage in hostile oper-
ations, which had been adapted entirely or partly within the said
jurisdiction for use in war." *
(c) The conclusion of peace puts an end to neutral obliga-
TarmiMti tious. A ncutral state may by entering the
of neutral war terminate its neutrality. In 1917, during
obUgatioiu. ^^ continuance of war, Brazil revoked its earlier
proclamation of neutrality.
^ Appendix, p. cL < 7 Moore, f 1330. * Appendix, p.
OUTLINE OF CHAPTER XXIV
NEUTRAL RELATIONS BETWEEN STATES AND
mDIVmUALS
186. ORDINART COMMBRCB IN TIMB OF WAR.
(a) Destination of the vessel.
(b) Ownership of goods.
(c) Nationality of the vessel.
(1) Instances of the variety of practice since 1T78.
((f) Principles of the Declaration of Paris in regard to the flag
and goods.
187. CONTRABAND.
(a) History of the principle of contraband.
(1) Attitude of the United States.
(2) Range of articles classed as contraband.
(b) Declaration of London, 1909, in regard to articles treated as
contraband.
(c) Absolute and conditional contraband.
(d) Prohibited exports.
188. PBNALTY FOR CARRYING CONTRABAND.
(a) Hostile destination renders goods liable to penalty.
(b) Provision of Declaration of London.
(c) When contraband is only part of the cargo.
((f) Practice of preihnption.
189. UNNEUTRAL SBRVICE.
(a) Participation in the hostilities.
(b) Transmission of intelligence in the interest of the enemy.
(c) The carriage of certain belligerent persons.
(d) Auxiliary coal, repair, supply, or transport ships.
140. VISIT, SBARCH, AND SEIZURE.
(a) The right of visiting and searching merchant ships upon the
seas.
(b) The object of the right of search.
(c) The method of conducting the search.
(d) Ship's papers as evidence of the character of the vesseL
(e) Grounds of seizure.
323
(/) Procedure in regard to neutral vessel and prupeity in case off
seizure.
(g) Exemption from capture as provided by the Hague Conven-
tion.
(h) Destruction of neutral prizes generally forbidden.
141. CONVOY.
(a) Differences in practice in regard to convoy.
(b) Provision of the Declaration of London, 1909.
142. BLOCKADE AND OTHER RESTRAINTS.
{a) History of the practice of blockade.
(&) Conditions of existence of a blockade.
(c) Blockade a war measure.
(d) Declaration of a blockade.
(e) Notification of the existence of blockade.
(/) . A blockade must be effective.
(g) Cessation of a blockade.
(h) Defensive areas.
(j) Mined areas.
(J) War zones.
[k) Retaliatory measures.
143. VIOLATION OF BLOCKADE.
144. CONTINUOUS VOYAGES.
(a) History of the principle.
(1) Case of the Bermuda.
(2) Case of the Stephen Hart.
(3) Position of the United States.
(b) Rules of the Declaration of London, 1909.
(c) Doctrine after 1914.
146. ANGARY.
146 PRLZE AND PRIZE COURTS.
(a) Prize general term applied to captures made at sea.
(b) The National Prize Court.
(1) Where the prize court may sit.
(2) Methods of procedure of prize courts.
(c) Prize money and its distribution,
(cf) The International Prize Court.
324
CHAPTER XXIV
NEUTRAL RELATIONS BETWEEN STATES AND
mDIVmUALS
136. Ordinary Commerce in Time of War
As a general principle, subjects of a neutral state may carry
on conmierce in the time of war as in the time of peace. At
the same time, owing to the fact of war, a belligerent has the
right to take measures to reduce his opponent to subjection.
The general right of the neutral and the special right of the
belligerent come into opposition. The problem becomes one
of " taking into consideration the respective rights of the bel-
ligerents and of the neutrals ; rights of the belligerents to place
their opponent beyond the power of resistance, but respecting
the liberty and independence of the neutral in doing this ; rights
of the neutrals to maintain with each of the belligerents free
commercial relations, without injury to the opponent of either." ^
In regard to commerce in the time of war, the matters of
destination, owner ship of goods, and in the World War, origin,
and the nationality of the vessel, have been the facts ordinarily
determining the treatment by the belligerent. If there was
nothing hostile in the destination of the commercial under-
taking, in the nature of the goods, or in the means of transport,
the conmierce was free from interruption by the belligerent.
(a) The questions arising in regard to des-
tination will naturally be treated under the sub-
jects of contraband, blockade and continuous voyage.
> Fauchille's Bonfila. " Droit Int. Public." $ 1494 flf. : Despagnet, " Droit
Int. Public," § 682 ff. ; Investigation Chalmetto Supply Camp, House Doo.
568, 57th Cong. U. S.. 1902.
325
326 INTERNATIONAL LAW
(6) The ownership of goods has usually been a fact deter-
mining their liability to capture.
The rules of the Consolato del Mare, compiled about the four-
teenth century, looked to the protection of the neutral vessel
Ownenhip of *^^ ^^^ neutral goods on the one hand, and to the
goods. seizure of the enemy vessel and of the enemy
goods on the other hand. The goods of an enemy could
be seized under a neutral flag, and the goods of a neutral
were free even though under an enemy flag. This doctrine con-
sidered mainly the ownership of the goods. These rules were
held in favor till the sixteenth century, from which time the
practice varied greatly, sometimes being regulated by treaty.
In the sixteenth century France advanced the doctrine of hostile
contagion, maintaining the principle of " enemy ships, enemy
goods," and " enemy goods, enemy ships." ^ 1
(c) The nationality of the vessel has been sometimes regarded
Nationality of ^ the sole fact determining liability of goods
thevesseL ^ captiure, and at other times as affecting onlyj
the vessel itself. 1
Under the rules of the Consolaio, the flag determined the
liability of the vessel only. Under the French ordinances,
the enemy flag contaminated the goods. From 1778, the doc-
trine that the neutral flag covered enemy goods became more
conmionly accepted. This was especially emphasized by the
armed neutrality of 1780.
Some of the agreements of the United States will show the
variety of practice even in recent times. By Art. XXIII of
the Treaty of 1778 with France it was provided, " that free
ships shall also give a freedom to goods, and that everything
shall be deemed to be free and exempt which shall be found on
board the ships belonging to the subjects of either of the con-
federates, although the whole lading or any part thereof
should appertain to the enemies of either, contraband goods
» Walker, " Science of Int. Law," p. 296.
NEUTRAL RELATIONS 327
being always excepted." In the Treaty of 1785 with Prussia
occurred the following: "Free vessels making free goods,
^^^ insomuch that all things shall be adjudged free
pnctiM iiaca which shall be on board any vessel belonging to
^^™* the neutral party, although such things belong to
an enemy of the other." In the Treaty of 1795 with Spain
was a similar provision, excepting, however, contraband of
war. It was asserted in the Treaty of 1799 with Prussia that
as the doctrine of " free ships make free goods " had not been
respected " during the two last wars," and in the one " which
still continues," the contracting parties proposed " after the
return of a general peace " to confer with other nations and
meantime to observe " the principles and rules of the law of
nations generally acknowledged." The Treaty of 1819 with
Spain interpreted the clause of the Treaty of 1795 in which
it was stipulated that the flag shall cover the property, by saying,
" that this sihall be so understood with respect to those Powers
who recognize this principle ; but if either of the two contracting
parties shall be at war with a third party, and the other neutral,
the flag of the neutral shall cover the property of enemies whose
Government acknowledges this principle, and not of others."
The Treaty of 1794 with Great Britain expressly provided that
property of an enemy on a neutral vessel shall be good prize.
In 1887 it was agreed in the treaty with Peru " that the stipu-
lation in this article declaring that the flag shall cover the
property shaU be understood as applying to those nations only
who recognize this principle ; but if either of the contracting
parties shall be at war with a third, and the other shall remain
neutral, the flag of the neutral shaU cover the property of ene-
mies whose Governments acknowledge this principle, and not
that of others." ^ In spite of these variations, the practice of
the United States has been fairly uniform.
According to the unratified Declaration of London of 1909,
' Seo Treaties of U. S. under respective dates.
328 INTERNATIONAL LAW
Article 57, in general the nationality of a vessel was to be '' de-
termined by the flag which she is entitled to fly." * Prance,
on October 26, 1915, modified paragraph 1 of this Article 57
as follows :
'' whenever it is established that a ship flying an enemy flag belongs
in fact to the nationals of a neutral or an allied country, or con-
versely that a ship flying a neutral or allied flag belongs in fact to
nationals of an enemy country, or to parties residing in an enemy
country, the ship shall accordingly be considered neutral, allied,
or enemy."
{d) Since 1856 the principles enunciated in
Paris in regard the Declaration of Paris have generally pre-
to the flag vailed. The provisions in regard to the flag
and goods. r o o
and goods are : —
"2. The neutral flag covers enemy's goods, with the exception
of contraband of war.
"3. Neutral goods, with the exception of contraband of war,
are not liable to capture under the enemy's flag." *
This agreement bound only those states which signed it.
A few states, including the United States, Spain, Mexico, Vene-
zuela, and China, did not accede to these provisions. The
United States declined because the government desired a pro-
vision exempting all private property at sea from capture.'
In the War of 1898, the United States announced that the
rules of the Declaration of Paris would be observed, and Spain
made a similar announcement except as to the clause in regard
to privateering.'* Spain did not, however, make use of priva-
teers. The goods of a neutral embarked in a belligerent carry-
* Appendix, p. ciii.
* Appendix, p. xxxi, and particularly the London Declaration, 1909, Chapter
VI, Appendix, p. ciii.
* For the discussion of " the immunity of private property on the high seaa,"
at the Hague Peace Conference, see III Deux Conf. de la Paix, pp. 750 ff.
* Proclamations and Decrees during the War with Spain, pp. 77, 93.
NEUTRAL RELATIONS 329
ing vessel are liable to the damages or destruction which may be
the consequence of necessary acts of war. Destruction not the
result of such necessary* acts would be in violation of the rules
of the Declaration of London, and the neutral is entitled to
reparation.^
The rules of the Declaration of Paris had been so generally
accepted in practice that there was thought to be little possi-
bility that they would be disregarded by the civilized states
of the world. However, in the World War there were many
departures from accepted principles. When neutrals protested
they were informed that diplomatic representations might later
be made, but the practices continued.
137. Contraband
Contraband is the term applied to those articles which from
their usefulness in war a neutral cannot transport without risk
of seizure. While a state is under obligation to prevent the
fitting out of hostile expeditions and to refrain from furnishing
belligerent ships warlike material, a state is not bound to pro-
hibit the traffic by its citizens or subjects in contraband of war.
Such articles as are contraband may be seized on the high seas,
and by the Declaration of Paris ^ are not protected by the
neutral flag.
(a) Of the articles of commerce themselves, Grotius makes
three general classes : —
" 1. Those which have their sole use in war, such as arms."
"2. Those which have no use in war, as articles of luxury."
" 3. Those which have use both in war and out of war, as money,
provisions, ships, and those things appertaining to ships." '
Grotius regards articles of the first class as hostile, of the
second as not a matter of complaint, and of the third as of
^ Appendix, p. d. * Appendix, p. zxxi.
» " De Jure BeUi," Bk. III. Ch. i, 6 ; The " Peterhoff," 5 WaU., 28, 58.
330 INTERNATIONAL LAW
ambiguous use {uaus aneipUia), of which the treatment is to
be determined by their relation to the war.
While the general principle may be clear, the
the principle application of the principle is not simple. Those
of contraband, gj^^igg whose sole use is in war are, without ques-
tion, contraband. Articles exclusively for peaceful use are not
contraband. Between these two classes are many articles in
regard to which both practice and theory have varied most
widely. The theorists have usually endeavored to give the
neutral the largest possible liberty in conunerce, on the ground
that those who were not parties to the war should not bear its
burdens. This has been the opinion most approved by the
jurists of Continental Europe. Great Britain and the United
States have been inclined to extend the range of articles which
might on occasion be classed as contraband.
The attitude of the United States has usually been to favor
enumeration of articles which will be declared contraband.^
Attitude of the ^^ ^^ Spanish War of 1898 the United States,
United States, under the head of absolute contraband, issued
a list of articles of particular use in war, such as war
material, instruments of war, machinery for their manu-
facture. Horses were also included in this list. Conditional
contraband covered coal, railway and telegraph material, and
money, when destined for the enemy forces, and "provisions
when destined for an enemy's ship or ships or for a place that
is besieged."
The United States has also by certain treaty agreements
determined lists of contraband. Many of these lists are no
longer suited to military requirements.
The range of articles classed as contraband will naturally
vary from time to time as changes in the method of carrying
on war occur Horses have usually been regarded as con-
1 At the outbreak of the World War the United States propQO^d th9 Qia9siG.<«
tetion of the Declaration of London.
NEUTRAL RELATIONS 331
traband by France, England, and the United States, except
in their dealings with Russia, which state has always opposed
_ ^ this inclusion. The increasing importance of coal
ArtidM daned during the latter half of the nineteenth century
as contra j^^ j^ ^ ^y^^ policy of determination of its
character by its destination. Provisions are in practically
the same position as coal.^ In the war with Spain in 1898,
the United States included as absolute contraband, horses,
and as conditionally contraband, cod, money, and provisions,
which Spain did not mention. Spain mentioned by name
sulphur, which the United States did not specify, though it
might be included in some of the general classes. " As the
supply of sulphur is chiefly obtained from Sicily, the Spanish
government would have had a rare opportunity to seize and
confiscate it as it passed through the Straits of Gibraltar. But
upon the request of the Italian government it . . . refrained
from treating sulphur as contraband." '
The states of continental Europe had generally maintained
in time of war the division of articles into contraband and
non-contraband. The United States, Great Britain and Japan
usually added the category of conditional contraband. When
Russia, in 1904, included in the category of absolute contraband
such articles as fuel and cotton, several states protested on the
ground that the destination for military use was essential before
these articles could be regarded as contraband. Russia later
gave the interpretation that, " In cases where they were ad-
dressed to private individuals, these articles shall not be con-
sidered contraband of war." '
The contraband list was extended somewhat by British
proclamation, August 4, 1916. Great Britain's allies ac-
cepted this list and later additions. Naturally the opposing
> The Commereen, 1 Wheat., 382.
' See article of John Bassett Moore in Review of Renews, May, 1899.
• U. S. For. Rel. 1904. p. 3; British Pari. Papers, Russia, No. 1 (1905), p. 24^1
332 INTERNATIONAL LAW
belligerents correspondingly enlarged their lists. Distinction
between absolute and conditional contraband practically dis-
appeared. The British list in April, 1916, named more than
one hundred and fifty classes of contraband articles. Against
such extensions neutral states protested and reserved rights to
indemnity.
There remains great diversity of opinion upon the sub-
ject of contraband. The Hague Conference of 1907 formulated
a tentative list of absolute contraband, but did not reach final
conclusions, and the subject of contraband was made the first
in the list of topics submitted to the International Naval Con-
ference at London in 1908-1909.
(6) The International Naval Conference participated in by
Germany, United States, Austria-Hungary, Spain, France,
Dedantioii of Great Britain, Italy, Japan, Netherlands, and
London, 1909. Russia, approved in the Declaration of London
of February 26, 1909, the tentative list agreed upon at the
Hague Conference in 1907.
This includes articles which may, without notice, be treated
as contraband of war, under the name of absolute contraband
when destined for territory within the enemy jurisdiction.
With the exception of " saddle, draught, and pack animals
suitable for use in war," this is a list of articles primarily and
distinctively of military character.
In Article 24 of the Declaration articles susceptible of use
in war as well as for purposes of peace, which may, without
notice, be treated as contraband of war, under the name of
conditional contraband, were enumerated. This list includes
foodstuifs, fuel, clothing, etc.
A departure from earlier regulations was made in providing
that (Article 27) "Articles and materials which are not sus-
ceptible of use in war are not to be declared contraband of
war." A specific free list was also established, including many
raw materials such as cotton, wool, including agricultural and
NEUTRAL RELATIONS 333
mining machinery, fancy goods, etc. Likewise articles serving
exclusively to aid the sick and wounded may not be treated as
contraband of war. Articles intended for the use of the vessel
in which they are found, and those intended for the use of her
crew and passengers during the voyage, may not be treated as
contraband.
It was recognized that in the course of time, through new
inventions, etc., other articles might properly be added to the
lists of absolute or conditional contraband, and provision to
this end was made by means of a notified declaration.^
(c) During the wars since the Declaration of London, 1909,
the distinction between conditional and absolute contraband
has been less observed than formerly. In the Turco-Italian
War, 1911-1912, the list of absolute contraband included
*^ • . ^ articles formerly in the list of conditional contra-
Absolute and 1 , rm • 1 T^ 11 TTT
eonditionmi band. The same was true m the Balkan Wars,
eoiitrabaiid. 1912-1913. During the World War the Ust of ab-
solute contraband became almost aU inclusive. It is probable
that the category of conditional contraband will disappear and
that unless there is an international agreement the list of con-
traband articles will be extended as belligerents are strong and
neutrals weak and will be restricted when conditions are reversed.
(e) A result somewhat similar to the limitation on trade in
contraband was obtained through belligerent pressure upon
Prohibited neutrals during the World War which led neutral
exports. states to prohibit exportation of many articles
to European countries, e.g. the Danish list of September 20,
1915, enumerated more than two hundred articles from air tubes
to zinc*
138. Penalty for Carrying Contraband
(a) No penalty attached to the simple act of transportation
of contraband. It was the hostile destination of the goods
> Appendix. Ch. IX, p. zovi > N. W. C. 1916, 33 et seq.
334 INTERNATIONAL LAW
that rendered them liable to penalty and the vessel liable to
delay or other consequences according to circumstances.
Hostile destination for absolute contraband
nation^e&dera ^as " the territory belonging to or occupied by
goods lUbie to the enemy, or to the armed forces of the enemy."
poiuuty.
Till 1914, it was generally accepted that to
render it liable to condemnation, conditional contraband must
be shown " to be destined for the use of the armed forces
or of a government department of the enemy State, unless in
this latter case the circumstances show that the articles cannot
in fact be used for the purposes of the war in progress." ^
(b) The unratified Declaration of London, 1909, provided :
"Art. 37. A vessel carrying articles liable to capture as ab-
solute or conditional contraband may be captured on the high
seas or in the territorial waters of the belligerents throughout
the whole course of her voyage, even if she has the intention to
touch at a port of call before reaching the hostile destination.
"Art. 38. A capture is not to be made on the ground of a
carriage of contraband previously accomplished and at the time
completed.
"Art. 39. Contraband is liable to condemnation."
A vessel which would otherwise be free when carrying con-
traband may become liable to condenmation on account of
fraud. Such fraud may consist in bearing false papers or
claiming a false destination.
In certain instances, vessels have been held liable to con-
demnation because carrying articles which by treaty between
the state of the captor and the state of the carrier are specially
forbidden.
The neutral carrier loses freight on the contraband goods
and suffers such inconvenience and delay as the bringing in
1 Appendix, Articles 30-37, pp. zcviii-zciz.
NEUTRAL RELATIONS 335
of the contraband and its adjudication in a proper court may
entail, and may be condemned to pay costs.^
(c) Provision was, however, made in the Declaration of
London, 1909, by which
"A vessel stopped because carrying contraband, and not liable
to condemnation on account of the proportion of contraband,
may, according to circumstances, be allowed to
band is only continue her voyage if the master is ready^ to de-
put of th« liver the contraband to the belligerent ship. . . .
"The captor is at liberty to destroy the contra-
band which is thus delivered to him." '
The United States has from time to time made treaties in-
volving this principle. An early treaty between the United
States and Sweden, 1783, says of the seizure of neutral vessels
with contraband :
"And in case the contraband merchandize be only a part of
the cargo and the master of the vestel agrees, consents and offers
to deliver them to the vessel that has discovered them, in that
case the latter, after receiving the merchandizes which are good
prize, shall immediately let the vessel go and shall not by any means
hinder her from pursuing her voyage to the place of her destin-
ation." »
If ratified. Article 40 of the Declaration of London would
have allowed condemnation of a vessel if contraband formed
"either by value, by weight, by volume, or by freight, more
than half the cargo."
(d) Under special circumstances goods have been treated
as liable to preemption instead of absolute seizure. Of this
_^ Hall says, " In strictness every article which is
either necessarily contraband, or which has be-
come so from the special circumstances of war, is liable to con-
fiscation ; but it is usual for those nations who vary their list
^ AppendiXi Article 41, p. zcix. * Appendix, Article 44, p. o.
» Article 13, Treaty 1783.
336 INTERNATIONAL LAW
of contraband to subject the latter class to preemption only,
which by the English practice means purchase of the merchan-
dise at its mercantile value, together with a reasonable profit,
usually calculated at ten per cent on the amount." ^ This
practice was not viewed with favor upon the Continent because
indicating a departure from the generally accepted practice.
139. Unneutral Service
Unneutral service differs from the carriage of contraband,
particularly in being hostile in its nature and involving a par-
ticipation in the contest by the neutral rendering the service.
Such service involves assistance in the performance of warlike
acts. While the destination is a question of vital importance
in the case of contraband, the intent of the act is a matter of
highest importance in cases of unneutral service.*
The acts generally regarded as in the category of unneutral
service are such as : —
1. Participation in the hostilities.
2. The transmission of intelligence in the interest of the
enemy.
3. The carriage of certain belUgerent persons.
4. Aid by auxiliary coal, repair, supply, transport ships,
or other ships in control of the belligerent.
(a) Participation in the hostilities naturally identifies a neu-
Pftrticipation tral With the belligerent and makes him and his
in hoBtiUtieB. property liable to treatment as belligerent.
(6) Of the transmission of intelligence, in the case of the
Atlanta, Lord Stowell said : —
"How is the intercourse between the mother country and the
colonies kept up in the time of peace? By ships
o^^^MttM °' ^'^^ °^ ^y packets in the service of the state.
If a war intervenes, and the other belligerent prevails
to interrupt that communication, any person stepping in to lend
i Hall. p. 713. > Herabey. 506.
NEUTRAL RELATIONS 337
himself to effect the same purpose, under the privilege of an
ostensible neutral character, does in fact place himself in the service
of the enemy state." *
Regular diplomatic and consular correspondence is not
regarded as hostile unless there is some special reason for such
belief.
Such acts by a neutral ship as the repetition of signals in
interest of a belligerent might render the ship liable to penalty.
Submarine telegraphic cables between a belligerent and a
neutral state may become liable to censorship or to interruption
beyond neutral jurisdiction if used for hostile purposes. The
introduction of radio telegraphy has enlarged the range of
imneutral communications.
(c) The limitation in regard to the carriage of certain bel-
ligerent persons applies to those who travel in such manner
Q^^jj^^^^ as to make it evident that they travel in the
certain beiKg- military or naval service of the belligerent state.
If the carnage of the person or persons is paid
by the state, or is under state contract, it is regarded as sufficient
evidence of unneutral service.* The neutral carrier engaged in
ordinary service is not obliged to investigate the character of
persons who take passage in the usual way. The case of the
Trent had no particular bearing upon this subject, as it merely
emphasized a principle at that time settled " that a public
ship, though of a nation at war, cannot take persons out of a
neutral vessel at sea, whatever may be the claim of her govern-
ment on those persons.'' '
The principle thus stated by Dana was modified as regards
those actually embodied in the armed forces of the enemy by
the unratified Declaration of London, 1909, to the following
effect :
» 6 C. Rob., 440. 445. « The Orozembo, 6 C. Rqb. 430.
» Wheat. D., p. 648.
338 INTERNATIONAL LAW
''Art. 47. Any individual embodied in the armed force of the
enemy and who is found on board a neutral merchant vessel, may
be made a prisoner of war, even though there be no ground for the
capture of the vessel."
On February 18, 1916, the British cruiser Laurentic removed
from the American steamship China thirty-eight enemy sub-
jects, and the British Government contended that it was ** of
the greatest importance for a belligerent power to intercept on
the high seas," " those agents whom the enemy sends to injure
his opponent abroad or whose services he enjoys without having
himself commissioned them." The Government of the United
States requested the release of the persons taken from the
China and on May 20, 1916, they were released.^
(d) Auxiliary coal, repair, supply, or transport ships, or
other vessels under orders or control of an enemy
repair, sopjiiy. government or m its exclusive employ have an
or trtaq^ort undoubted hostile character.*
■hipt.
The general penalty for the performance of
unneutral service is the forfeiture of the vessel so engaged.
Detailed penalties were prescribed in the unratified Declara-
tion of London, 1909.*
140. Visit, Search, Seizure, and Destruction
(a) *' The right of visiting and searching merchant ships
upon the seas — whatever be the ships, whatever be the car-
goes, whatever be the destinations — is an in-
visiting and contestable right of the lawfully commissioned
chiixrt^r" cruisers of a belligerent nation,"* is the state-
ment of the general principle laid down in the
case of the Maria. Judge Story says that the right is "allowed
^ Spec. Sup. A.J.I.L. Oct. 1016, p. 427 ; see also Piepenbrink case, /bwf., July
1915, p. 353.
- The Kovh-ahino, Takahashi, 24-51. ' Articles 45, 46, Appendix, p. c.
* 1 C. Rob.. 340, 359.
NEUTRAL RELATIONS 339
by the general consent of nations in the time of war and
limited to those occasions." ^ There is, however, a qualified
right of search in the time of peace in case of vessels suspected
of such offenses as piracy, slave trade, pelagic sealing,^ a right
to be exercised most carefully under liability to damages. Ap-
proach to ascertain the nationality of a vessel is also allowed.
(b) In the time of war the right is exercised in order to secure
-w^ va^^^ from the neutral the observance of the laws of
The object of
fhoijchtof neutrality, or specifically, according to the regu-
lations of the United States is exercised upon
private vessels to determine (1) their nationality, (2) the port
of destination and departure, (3) the character of their cargo,
(4) the nature of their employment, or (5) other facts which
bear on their relation to the war.
(c) The vessel is usually brought to by firing a- gun with a
blank charge, or if this is not sufficient, a shot across the bows
The method of ^^ ^^®^ ^^ ^^® ^^^ ^^ necessary force. The
conducting the cruiser should then send a small boat with an
officer to conduct the search. Arms may be
carried in the boat but not upon the persons of the men. The
officer should not be accompanied on board the vessel by more
than two men. He should examine the papers of the vessel.
If these papers show contraband, any offense in respect to
blockade, or that she is in the enemy service, the vessel should
be seized; otherwise she should be set free, unless suspicious
circiunstances justify a further search. An entry in the log
book of the circumstances of the visit should ordinarily be made
by the boarding officer.*
Protesting against British practice, in a note of October 21,
1915, the United States said that " search at sea was the pro-
cedure expected to be followed," modern conditions not justify-
1 The Marianna Flora, 11 Wheat., 1.
> Fur Seal Convention, 1011, 3 Treaties p. 60.
' Instructiona, June 30, 1917, f 42.
340 INTERNATIONAL LAW
ing bringing vessels into port for search, or seizures at sea on
" conjectural suspicion." About six months later Great Britain
in a note of April 24, 1916, replied to the American note. The
British maintained that " the question of locality of search,
is however, one of secondary importance " and argued for many
new practices.^
One of the new practices was the " routing " of neutral vessels
to belligerent ports for examination in port.
^ . (d) The papers expected to be on board as evi-
Ship 8 papers.
dence of the character of the vessel are : —
1. The register.
2. The crew and passenger list.
3. The log book.
4. A bill of health.
5. The manifest of cargo.
6. A charter party, if the vessel is chartered.
7. Invoices and bills of lading.^
{e) It is generally held that a vessel may be seized in
case of : —
Grounds of 1* Resistance to visit and search.
••*^"- 2. Clear evidence of attempt to avoid visit and
search by escape.
3. Clear evidence of illegal acts on the part of the neutral
vessel.
4. Absence of or defect in the necessary papers.
(a) Fraudulent papers.
(b) Destruction, defacement, or concealment of papers.
(c) Simple failure to produce regular papers.
(/) In case of seizure it is held that the neutral vessel and
property vest in the neutral till properly condemned by a duly
authorized court. The captor is therefore under
Seizure. i i- .^.
obligation : —
» For notes ace Spec. Sup. A. J. I. L., Oct., 19 1«., pp. 73, 120.
* Most of the fomis arc given in Instructions, June 30, 1917, pp. 41-77.
NEUTRAL RELATIONS 341
1. To conduct the seizure with due regard to the person
, and property of the neutral.
2. To exercise reasonable diligence to bring the capture
quickly to a port for its adjudication.
3. To guard the capture from injury so far as within
his power.
Failure to fulfill these obligations renders the belligerent
liable to damages.^
In the Chino-Japanese War of 1894, the Japanese war vessels
visited eighty-one neutral vessels, but only one was brought
to the prize court.^
In the Russo-Japanese War of 1904^1905 sixty-four vessels
were brought before the Japanese prize courts, of which fifty
were condemned.'
(g) The Hague Convention of 1907 with regard to the Right
of Capture in Naval War, provided for the inviolability of all
postal correspondence of whatever character on the high seas
except when " destined for or proceeding from a blockaded
Exemirtions port." The mail-ship is not exempt but should
from capture. ^^^ \^ searched except when absolutely necessary.
During the World War this exemption was properly held
to apply to " correspoijdence " only and not to goods whether
sent by parcel post or sealed in other wrappers.^ It was also
maintained that belligerents might censor " correspondence."
This met with opposition from neutrals, but the practice con-
tinued.*
Innocently employed small coast fishing and coast trading
vessels are exempt from capture, as are vessels engaged in re-
ligious, scientific, or philanthropic missions.*
1 Hall. p. 738.
s Takahashi, Chino-Japanese, 16-23.
* Takahashi, Ruaao-Japanese, 537.
< Parliamentary Papers, Misc. No. 0 (1016), p. 6.
* See Spec. Sup. A. J. I. L.. Oct. 1916, pp. 404 ei aeq.
* Appendix, p. Ixzxiv.
342 INTERNATIONAL LAW
Ch) As a general principle a neutral vessel which has been
seized should be conducted to a prize court and accordmg
to Article 48 of the Declaration of London, 1909,
nett^^p^ML ^^ ^^ to be the recognized rule.
It was evident, however, that in pnu^ice neutral
vessels were sometimes destroyed and that the regulations of cer-
tain states made provision for destruction under exceptional
circumstances. There was not agreement upon what should
be admitted as exceptional circimtistances. To meet this
difficulty the London Declaration proposed : —
"Art. 49. As an exception, a neutral vessel which has been
captured by a belligerent ship, and which would be liable to con-
demnation, may be destroyed if the observance of Article 48 would
involve danger to the ship of war or to the success of the oper-
ations in which she is at the time engaged."
All persons and papers must be placed in safety. This re-
quirement was reaffirmed at the Conference on Limitation of
Armament, 1922. The captor must establish that his act was
due to " an exceptional necessity,'^ otherwise compensation must
be paid " whether or not the capture was valid." Compensa-
tion must also be paid if the capture is subsequently held invalid
and also for innocent goods destroyed.^
The United States protested as "an indefensible violation
of neutral rights " the sinking of vessels by Germany within
the war zone declared February 4, 1915. On January 31,
1917, Germany indicating a large area around Great Britain,
France, Italy and in the Eastern Mediterranean announced,
" All ships met within that zone will be sunk." The United
States inmiediately broke off diplomatic relations, February 3.
On March 12, 1917, the United States announced that it would
place upon American merchant vessels " an armed guard for the
protection of the vessels and the lives of the persons on board."
^ Appendix, p. ci.
NEUTRAL RELATIONS 343
Congress stating that war had '* thus been thrust upon the
United States " declared war against Germany, April 6, 1917,
and the President signed the resolution at 1 : 18 p.m.
Germany had in the submarine warfare disregarded all the
rules in regard to destruction of merchant vessels, thus bringing
discredit upon the submarine as a legitimate instrument of war,
preparing the way for the prohibitions adopted at Washington
Conference on limitation of Armament, February 6, 1922.^
These rules may be open to evasion if armed merchant vessels
are not also prohibited.
141. Convoy
(a) A neutral merchant vessel is sometimes placed under the
protection of a ship of war of its own state, and is then said to
be under convoy.
It had been claimed by many authorities, particularly
those of Continental Europe, that such a merchant vessel was
exempt from visitation and search upon the declaration
DifferencM ot the commander of the neutral ship of war
iBpnctice. ^^^ ^g merchantman was violating no neutral
obligation. England had uniformly denied the validity of this
claim up to 1908, when at the International Naval Conference
she waived her former contention and Articles 61 and 62 of the
Declaration of London were adopted.*
Practice has been very divergent in most states. From
the middle of the seventeenth century the right of convoy
has been asserted. From the end of the eighteenth century
the claim has gained in importance.' The United States has
made many treaties directly recognizing the practice.
(6) In the World War the Italian Naval Prize Regulations
of July 15, 1915, embodied the articles of the Declaration of
> Appendix, p. cvii. * Appendix, p. ciii.
* Geesner, *' Le Droit des neutres sur mer," Ch. IV ; Perels, " Manuel
Dioit Maritime," f 56.
344 INTERNATIONAL LAW
London : " 10. Neutral vessels convoyed by a ship of war shall
be exempt from visit provided that the commander of the con-
voy declares in writing the character and cargo of the convoyed
vessel in such manner as will enable all information to be avail-
able which could be obtained by exercising the right of visit.
If the naval officers in command have reason to think that the
good faith of the commanding officer of the escort has been
imposed upon, they will communicate to him
Pnctice their suspicion so that he may on his own ac-
in too ^T ocio
War. count make the necessary verifications and issue
a written report." ^ In general the convoying
of merchant vessels was not resorted id during the World
War.
142. Blockades and Other Restraints
Blockade is the obstruction of communication with a place
in the possession of one of the belligerents by the armed forces
of the other belligerent. The form which blockade takes in
most cases is that of obstruction of communication by water.
(o) In 1584 Holland declared the ports of Flanders block-
aded. HoUand did not, however, maintain this declaration
by ships of war ; indeed, in the early days there
were no such ships as would make the maintenance
of a blockade possible. Such paper blockades were common in
the following centuries, and all the ports of a state were fre-
quently proclaimed blockaded, even though there might be no
force in the neighborhood to insure that the blockade would not
be violated. Treaties of the eighteenth century show an in-
clination in the states to lessen the evils of blockade by procla-
mation. The growth of neutral trade led to the adoption of rules
for its greater protection. The armed neutrality of 1780 as-
serted in its proclaimed principles that a valid blockade should
> N. W. C. 1915, p. 116.
NEUTRAL RELATIONS 345
involve such a disposition of the vessels of the belligerent pro-
claiming the blockade as to make the attempt to enter mani-
festly dangerous.^ The armed neutrality of 1800 asserted that
a notice from the commander of the blockading vessels must
be given to the approaching neutral vessel. During the Napo-
leonic wars there was a return to the practice of issuing procla-
mations with the view to limiting neutral conmierce. The Eng-
lish Orders in Council of 1806 and 1807, and the Berlin Decree of
1806, and the Milan Decree of 1807, by which Napoleon at-
tempted to meet the English Orders, were the expression of the
extremest belligerent claims in regard to the obstruction of
neutral commerce. The treaties of 1815 said nothing in regard
to blockade. The practice and theory varied till, by the Decla-
ration of Paris in 1856, a fixed basis was announced in the pro-
vision that ^' Blockades, in order to be binding, must be ef-
fective." *
British Orders in Council and decrees of other states, 1914-
1917, gave rise to differences between neutrals and belligerents
similar to those of the early nineteenth century.*
(6) A blockade presupposes : —
1. A state of war.
^1^^^ ^ 2. Declaration by the proper authority.
3. Notification of neutral states and their
subjects.
4. Effective maintenance.
(c) The so-called pacific blockade because differing in pur-
pose and method is not properly a war measure. In a strict
Biockidea ^ense there is no blockade without war, and
wwrneatiire. blockade may continue even to the conclusion
of peace though a truce or armistice intervene.
(d) Blockade can be declared only by the proper authority.
* Walker, " Science of Int. Law," p. 304. * Appendix, p. xxxi.
*See Spec. Sup. A. J. I. L. July, 1915, pp. 4 et aeq., 101 et aeq.; Ibid,^ Oct.,
1916, pp. 4 €l «eg., 79 el «eg.; 2 Hyde, 658.
346 INTERNATIONAL LAW
As war is a state act, only the person or authority desig-
nated by the constitution or law of the state can declare a
blockade. Such a declaration must, in general,
come from the chief of the state. In certain
cases a blockade declared by an officer in conunand of forces
remote from the central government is held to be valid from
the time of its proclamation, if the act of the commander re-
ceives subsequent ratification from the central authority.
The unratified Declaration of London, 1909, Article 9, pro-
posed that a blockade should specify : —
" (1) The date when the blockade begins.
" (2) The geographical limits of the coast blockaded.
"(3) The delay to be allowed to neutral vessels for depar-
ture." 1
The British Government, February 23, 1915, issued the
following: —
" His Majesty's Government have decided to declare a blockade
of the coast of the Cameroons as from midnight April 23rd-24th.
The blockade will extend from the entrance of Akwayafe River to
Bimbia Creek, and from the Benge mouth of the Sanaga River to
Campo.
" Forty-eight hours' grace from the time of the commencement
of the blockade will be given for the departure of neutral vessels
from the blockaded area."
(e) Neutrals must be notified of the existence of a blodcade.
This notification may be : —
1. By official proclamation announcing the
place to be blockaded, and the time when the proclamation
becomes effective.
2. By notification to vessels when they come near the
place blockaded.
3. The use of both the above methods.
^ Appendix, p. xciii.
NEUTRAL RELATIONS 347
The theory of the American and English authorities has been
to assume a knowledge of the blockade on the part of subjects
if the political authority of their state had been informed of the
existence of the blockade before the neutral vessel left port.^
The French rule has been to give in every instance an ap-
proaching neutral vessel warning of the existence of a blockade,
and to consider the notification to the neutral state authorities
as merely a diplomatic courtesy.
Ordinarily local notification is made to port and consular
authorities of the place blockaded.
In recent years the time aUowed a vessel to discharge, reload,
and to leave port has been specified.
In case of special notification by the officer in conmiand of
a blockading ship to a neutral vessel ignorant of the block-
ade, the fact with particulars should be entered in the log of
the neutral vessel over the officer's signature.*
(/) The principle that a blockade must be effective applies
A Uockad y^^ to the place and to the manner of enf orce-
miwt be ment.
1. Blockade must apply to a place which
may be blockaded, i.e. to seaports, rivers, gulfs, bays, road-
steads, etc. A river which forms the boundary between one of
the belligerent states and a neutral state may not be blockaded.
Rivers flowing for a part of their course through belligerent
territory but discharging through neutral territory may not be
blockaded. Certain waters are not hable to blockade because
exempt by agreement ; as in the case of the Kongo River by the
Act of 1885.
2. " Blockades, in order to be binding, must be effective,
that is to say, maintained by a force sufficient really to prevent
> Prendent McKinley's Proclamation of Blockade, during the war with
Spain, 18 given in Proclamations and Decrees, p. 75, and President Lincoln's,
during the war with the South, in 12 U. S. Sts. at Large, Appendix ii, iiL
* Appendix, p. xciv.
34S INTERNATIONAL LAW
access to the coast of the enemy." ^ This is interpreted in the
United States as " maintained by a force sufficient to render
ingress to or egress from the port dangerous." ^ The subject
of the degree of eflfectiveness which is necessary has been much
discussed, and can only be determined by the circumstances in
a given case.' The English interpretation in the main agrees
with that of the United States. The Continental states are
inclined to give a more literal interpretation to the rule.
The Declaration of London, 1909, recognized that geograph-
ical and many other conditions affect the maintenance of a
blockade and decided : —
*
''Art. 3. The question whether a blockade is effective is a
question of fact." *
(g) A blockade comes to an end : —
1. By the cessation of any attempt to render it effective.
tum. ^' ^^ ^^ repulse by force of the vessels at-
tempting to maintain the blockade.
3. For a given neutral vessel when there is no evidence of a
blockade, after due care to respect its existence. This may
happen when the blockading force is temporarily withdrawn
on account of stress of weather.
There is a general agreement that in the other cases after
cessation blockade must be formally instituted again as it was
in the beginning.
(A) During all wars certain areas have been especiaUy danger-
ous because in the neighborhood of hostile operations. Into
DefeiuiTe areas in which hostilities were actually going on
•'••■• neutrals came at their own risk. Neutrals have
in recent years been excluded from areas which were regarded
by the belligerent as of particular military importance. These
1 Declaration of Paris, Appendix, p. zxzi.
s Instructions, Navy of U. S., June 30, 1917, f27; dted Olinde Rodriouez^
174 U. 8. 510.
» Calvo, § 2841.
* Appendix, p. xciii.
NEUTRAL RELATIONS 349
were termed by Japan in 1904 " defensive sea areas " and
have at other times been named " strategical areas." The
United States established such areas by executive orders from
April 5, 1917, and other states had already issued similar orders.
(t) The establishment of mined areas has become usual in
time of war. Almost from the commencement of the World
MiMd War, mine fields were proclaimed and counter
■^•••' mining operations were conunon.^ On August 11,
1914, Great Britain announced, " The waters of the North
Sea must therefore be regarded as perilous in the last degree
to merchant shipping of all nations," declaring that, "The
Germans are scattering contact mines indiscriminately about
the North Sea."
(j) Contending that Germany had disregarded the laws of
war. Great Britain gave notice on November 3, 1914, that " the
whole of the North Sea must be considered a military area."
Soon retaliatory declarations among the belligerents were com-
mon, and at length, on January 31, 1917, Germany
declared a war zone " around Great Britain,
France, Italy, and in the Eastern Mediterranean " and that
" all ships met within that zone will be sunk." Breaking of
diplomatic relations and war with the United States foUowed
this " war zone " note.
(k) These extreme retaliatory measures are not sanctioned
Retaiifttory by international law and even when retaliatory
meMures. measures are justified against an enemy, this
justification gives no sanction to acts directly aimed at the
neutral in order to injure indirectly the belligerent. The
British Court decided, however, in 1919 that " Disregard of a
valid measure of retaliation is as against neutrals, just as justici-
able in a court of prize as is breach of blockade or the carriage of
contraband of war." *
> N. W. C. 1917, pp. 106 et seq,
> The Leonora, 35 L. T. R. (1919), 719.
350 INTERNATIONAL LAW
143. Eolation of Blockade
'' A breach of blockade is not an offense against the laws of
the country of the neutral owner or master. The only penalty
for engaging in such trade is the liability to captiu^ and con-
demnation by the belligerent." ^ The American and English
practice was to regard as the breach of blockade the act of
passing, unless by special privilege, into or out of a blockaded
place, or a manifestation of an intent to thus pass. The French
courts imposed a penalty only upon those who actually at-
tempted to run the blockade. The American practice made the
vessel liable to penalty from the time of its departure from
neutral jurisdiction with intent to enter the blockaded port imtil
its return, unless the blockade was raised meantime.
The Declaration of London, 1909, attempting to reconcile
divergent practices, in an equitable manner, proposed that : —
" Art. 1 7. The seizure of neutral vessels for violation of blockade
may be made only within the radius of action of the ships of war
assigned to maintain an effective blockade."
"Art. 20. A vessel which in violation of blockade has left a
blockaded port or has attempted to enter the port is liable to cap-
ture so long as she is pursued by a ship of the blockading force.
If the pursuit is abandoned or if the blockade is raised, her capture
can no longer be effected." *
Under proper regulations, certain vessels are usually allowed
to pass a blockade * without penalty : —
1. Neutral vessels in actual distress.
2. Neutral vessels of war strictly as a privilege.
3. Neutral vessels in the port at the time of the establish-
ment of the blockade, provided they depart within a reason-
able time.
In the War of 1898, the United States allowed thirty days
* Snow'a " Interoational Law,*' n. 155. * Appendix, pp. xoit, zov.
* Appeadix, p. xciiL
NEUTRAL RELATIONS 351
after the establishment of the blockade to neutral vessels to
load and to depart. Practice has varied in later wars.
The usual penalty for the violation of blockade is forfeiture of
vessel and cargo, although when vessel and cargo belong to
different owners, and the owner of the cargo is an innocent
shipper, it has been held that the cargo may be released.^ The
same action may be taken as to innocent cargo if a vessel de-
viates from her original destination to a blockaded port. The
crews of neutral vessels violating a blockade are not prisoners
of war, but may be held as witnesses before a prize court.
14A, Continuous Voyages
(o) The rule of war of 1756 declared that during war neutrals
were not permitted to engage with the colonies of a belligerent
in a trade which was not permitted to foreigners
in time of peace. Ordinarily in the time of peace,
trade between the mother country and the colony was restricted
to domestic ships. This rule was adopted in order that a neutral
might not, by undertaking trade denied him in time of peace,
relieve one of the belligerents of a part of the burdens of war
which the interruption of domestic conunerce by the other bel-
ligerent had imposed. Trade with neutral ports was allowed in
time of peace. Therefore, to avoid technical violation of the
rule, neutral vessels sailing from a port within belligerent juris-
diction, touched at a port within neutral jurisdiction, and in
some cases landed and reshipped their cargoes. Lord Stowell
decided that it was a settled principle " that the mere touching
at any port without importing the cargo into the conunon
stock of the country will not alter the nature of the voyage,
which continues the same in all respects, and must be con-
sidered as a voyage to the country to which the vessel is actually
going for the purpose of delivering her cargo at the ultimate
' Appendix, p. zcv.
352 INTERNATIONAL LAW
port." 1 In the case of the WiUiam in 1806, Sir William Grant
declared that " the truth may not always be discernible, but
when it is discovered, it is according to the truth and not ac-
cording to the fiction that we are to give to the transaction its
character and denomination. If the voyage from the place of
lading be not really ended, it matters not by what acts the party
may have evinced his desire of making it appear to have ended.
That those acts have been attended with trouble and expense
cannot alter their quality or their effect." ^ The English
authorities held that the visit to a neutral port did not constitute
the trip two voyages, but that the voyage was continuous and the
property liable to confiscation, though Hall says the " cargo was
confiscated only when captured on its voyage from the port
of colorable importation to the enemy country." ' British
cruisers, however, seized three German vessels, the Herzog,
the Bundesrath, and the General, during the South African War
of 1899-1900, while on a voyage to the Portuguese port of
Loren90 Marquez, which was the natural port of entry for
Pretoria, the capital of the South African Republic. Germany
protested. The vessels were released and the English author-
ities promised that in the future they would refrain from search-
ing vessels until the vessels had passed beyond Aden, or any
other place at the same distance from Delagoa Bay.
The American doctrine of continuous voyages was a con-
Caseofthe siderable extension of the English doctrine and
Bermuda. during Civil War met with severe criticism. In
the case of the Bermuda, captured during the Civil War of
1861-1865, it was held that : —
"Destination alone justifies seizure and condemnation of ship and
cargo in voyage to ports under blockade; and such destination
justifies equally seizure of contraband in voyage to ports not
under blockade; but in the last case the ship, and cargo, not
> The Maria, 5 C. Rob.. 365, 368. - 5 C. Hob.. 385, 396. * SaU. p. 719.
NEUTRAL RELATIONS 353
contraband, are free from seizure, except in cases of fraud or bad
faith/' 1
In the case of the Stephen Hart, a British schooner, bound
Case of the {toui London to Cuba with a cargo of war sup-
stephen Htrt pjigg, captured in 1862 off the coast of Florida,
Judge Betts condemned both vessel and cargo. He main-
tained that : —
''The commerce is in the destination and intended use of the
property laden on board of the vessel, and not in the incidental,
ancillary, and temporary voyage of the vessel, which may be
but one of many carriers through which the property is to reach
its true and original destination. ... If the guilty intention,
that the contraband goods should reach a port of the enemy, existed
when such goods left their English port, that guilty intention cannot
be obliterated by the innocent intention of stopping at a neutral
port on the way. . . . This court holds that, in all such cases,
the transportation or voyage of the contraband goods is to be con-
sidered as a unit, from the port of lading to the port of delivery
in the enemy's country ; that if any part of such voyage or trans-
portation be unlawful, it is unlawful throughout; and that the
vessel and her cargo are subject to capture ; as well before arriving
at the first neutral port at which she touches after her departure
from England, as on the voyage or transportation by sea from such
neutral port to the port of the enemy." *
This position of the United States, which has been so crit-
icized, is liable to be abused to the disadvantage of neutral
Posttion of the Commerce. The absence of some such rule would
United States, ^pgjj ^^ j^j^j. ^^ ^^^ which, though neutral
in form, would be hostile in fact. It seemed necessary to allow
the exercise of a certain amount of supervision over commerce
of neutrals when it was destined to neutral ports having con-
venient communication with the enemy. This might extend to
the seizure of neutral vessels bound for that port only in
1 3 WaU.. 514. * Blatchford's Prise Cases. 387, 405. 407.
354 INTERNATIONAL LAW
form, provided there was no doubt as to the true destination,
but such seizure was to be made with the greatest care
not to violate the proper rights of neutrals. There was
less reason for the general exercise of this supervision over
vessels sailing to a neutral port which was separated from the
belligerent territory by a considerable expanse of water, than
for its exercise over vessels sailing to a port which was separated
only by a narrow expanse of water. In cases where the neutral
port was upon the same land area with the belligerent territory
and had easy conununication by rail or otherwise, so that it
might become a natural port of entry for goods bound for one
of the belligerents, the other belligerent might properly exercise
a greater degree of authority in the su])ervision of conmierce
than would ordinarily be allowable. It was on this ground that
England could justify her action in the seizure of vessels bound
for Delagoa Bay during the war in South Africa, in 1899-1900 ;
and similarly Italy justified her seizure of the Dutch vessel,
Doelwyk, in August, 1896, during the Abyssinian war. This
vessel was bound for a friendly port, but a port from which
its cargo of war supplies would pass overland to the enemy with-
out difficulty.
(6) "The doctrine of continuous voyage in respect both
Rules of the ^' contraband and of blockade " was the subject
Dedaratioii of of much controversy at the London Naval Con-
''^^"'^^•~- ference in 1908-1909.
The United States Government had advanced the extremest
claims under this doctrine during the Civil War of 1861-1865.
It was acknowledged that these claims were made under excep-
tional circumstances.
Certain states had positively denied the existence of the
rights claimed by states maintaining the doctrine of contin-
uous voyage.
The Conference distinguishing between absolute and con-
ditional contraband finally agreed upon the following only : —
NEUTRAL RELATIONS 355
"Art. 30. Absolute contraband is liable to capture if it is
shown to be destined to territory belonging to or occupied by the
enemy, or to the armed forces of the enemy. It is immaterial
whether the carriage of the goods is direct or entails either tranship-
ment or transport over land."
The right of capture was, however, extended to conditional
contraband in the World War.
(c) After 1914, even the American Civil War doctrines of
continuous voyage were extended. Great Britain in April,
Doctrine 1916, asked why the doctrine should not apply
after 1914. ^ goods bound for Germany " passing through
some Swedish port and across the Baltic or even through
neutral waters only."
During the World War, the expression " continuous trans-
portation " was sometimes used in case of goods passing over
land. The sole test in some cases was the real ultimate desti-
nation of the goods regardless of inunediate or intermediate
stopping places.^
146. Angary
On March 21, 1918, the British Government conmiunicated
to its minister in the Netherlands that " After full consideration,
the Associated Governments have decided to requisition the
services of Dutch ships in their ports in exercise of the right
of angary." ^ The idea of angary is ancient and refers to forced
service. In early days the service of persons might in case of
need be forced, but in modem times angary has been particularly
applied to means of transport and communication. Many
treaties even in the nineteenth century implied the existence
of the right of angary and authors usually admitted the right.
Towards the end of the century the practice was thought to be
1 See the Kim. L. R. [1915], 215.
« PariiamentwyPapew.Cd. 9025, No. U (1918) p. 2; Zamora (1916) 2 A.C.
17.
356 INTERNATIONAL LAW
obsolete but during the World War the exercise of the right of
angary was affirmed in seizing a large amount of neutral mer-
chant shipping. The United States by a proclamation, March
20, 1918, thus took over a large number of vessels of Netherlands
registry and used them during the War. After the Armistice
the United States paid compensation for use or agreed value in
case of loss.
146. Prize and Prize Courts
(a) Prize is the general term applied to captures made at
sea. The ships and goods of an enemy liable to capture by
the laws of war, and the ships and goods of a
neutral when involved in acts forbidden by the
laws of war, may be brought into port for adjudication and
disposition. Enemy's goods, except contraband of war, are
not liable to capture on neutral ships.^ Certain ships engaged
in charitable or scientific pursuits, and coast fishing and trad-
ing vessels, are exempt from capture,* as are also certain specially
exempted by treaty. In general other goods and vessels of the
enemy are liable to capture. Contraband goods of a neutral,
vessels attempting to violate blockade, vessels performing un-
neutral service, or goods or vessels otherwise involved in a way
contrary to the laws of war are liable to capture.
(6) The national prize court is the tribunal which deter-
mines the rights of the parties concerned in the capture and
Natioiud prize the disposition of the goods or vessel. All cap-
®*^'*^- tures belong to the state in whose name they
are made. An inchoate title to the prize is acquired by pos-
session, but complete title is acquired only after condemnation
by a properly constituted prize court.
(1) A prize court may be established by the belligerent in
its own state, in the territory where the belligerent has mili-
1 Appendix, pp. xcviii, xcix, Articles 33, 35, 3Q,
* Appendix, p. Ixxxiy,
NEUTRAL RELATIONS 357
tary jurisdiction or in the territory of an al]y.^ The estab-
lishment of a court in neutral jurisdiction is not ])ermitted.^
_ , When Grenet, the minister of France, tried, in
PUce of tittiiig.
1793, to set up consular prize courts in the United
States, Washington protested and Genet was recalled. Taka-
hashi says, " It is clear that if we admit the prevailing principle
concerning the establishment of a prize court in a belligerent's
own dominions or its ally's, or in occupied territory, we may in-
fer that a court can be held on the deck of a man-of-war — a
floating portion of a territorial sovereignty — lying in the above-
mentioned waters, provided the processes of procedure are
followed."' He maintains, however, that a court might not
be established on the high seas, as proper procedure for the
interested parties would not be possible.
(2) The tribunals which have jurisdiction of prize cases differ
in the different countries. In the United States,
JJJjJj^^"' the District Courts possess the powers of a prize
court, and an appeal lies to the Supreme Coiut.^
Dana calls the prize tribunal an inquest by the state, and
regards it as the means by which the sovereign " desires and
is required to inform himself, by recognized modes, of the law-
fulness of the capture."
The methods of procedure of prize courts are similar in dif-
ferent countries.^ The practice in the United States is as
follows : —
The conmianding officer of the capturing vessel, after securing
the cargo and docimients of the captured vessel, makes an in-
ventory of the last named, seals them and sends them, together
with the master, one or more of the other officers, the su])er-
cargo, piurser, or agent of the prize, and also any one on board
> Halleck, II, p. 431. > Appendix, p. Izzxvii
* Takahashi. Chino-Japaneae, p. 106.
* Judicial Code. March 3. 1911 ; 1 U. S. Comp. Sts. | 091(3) ; 2 ibid. 1 1211^,
* Takahashi, Ruaso-Japaneeef 627,
358 INTERNATIONAL LAW
supposed to have information, under charge of a prize master
and a prize crew, into port to be placed in the custody of the
court. The prize master delivers the documents and the in-
ventory to prize commissioners, who are appointed by the
court, and reports to the district attorney, who files a libel
against the prize property and sees '' that the proper prepara-
tory evidence is taken by the prize commissioners, and that
the prize commissioners also take the depositions de hem esse
of the prize crew, and of other transient persons cognizant of
any facts bearing on condemnation or distribution." ^ The
libel should '' properly contain only a description of the prize,
•with dates, etc., for identification, and the fact that it was taken
as prize of war by the cruiser, and brought to the court for ad-
judication, that is, of facts enough to show that it is a maritime
cause of prize jurisdiction and not a case of municipal penalty
or forfeiture." ^ Notice is then published that citizens or neu-
trals, but not enemies, interested in the prize property shall ap-
pear and enter their claims. As there are no allegations in the
libel, the answer of the claimant is only a general denial under
oath. The prize commissioners then examine the witnesses
privately ; and this evidence, which is kept in secret until com-
plete, is called in preparaiorio} If the court is in doubt it will
order '' further proof," that is, besides the ship, cargo, docu-
ments, and witnesses. The burden is on the claimant to prove
title.^ If the claimant's right is not sufficiently established, the
property is condemned. The captors are, however, liable to
damages if there is found no probable cause for the capture.'
> 7 U. S. Comp. St8. {{ 8393 et aeq. > Wheat. D., n. 186, III.
* Wheat. D.. n. 186. Ill ; The Springbok, 5 Wall. 1 ; The Sir WiUiam Fed,
ibid., 517.
* Wheat. D., n. 186, III.
* The La Manche, 2 Sprague, 207. The method of procedure in a prUe
court, in case of enemy property, is given in Appendix, pp. cxxxviii et seq. With
a few changes, the same forms may be used in the case of neutral property.
See further on the method of procedure in a prize court, Takfthashi. Chino-
Japanese, pp. 11 e< aeq., 73-107, 172-191*
NEUTRAL RELATIONS 359
(c) It has been the general practice to distribute as prize
money the proceeds, or a part of the proceeds, of a capture
among the captors. This distribution is a matter of munici-
pal law. In England the sum realized from the sale of the
goods and vessel may be distributed among the
P)riz6 mofiQy. 11.1 1 • 1
captors, though the crown reserves the nght to
decide what interest the captors shall have, if any.^ By a
royal decree of June 20, 1864, Prussia provided in detail what
each of those participating in the capture should receive.^ By
the act of March 3, 1899, the United States provided that " all
provisions of law authorizing the distribution among captors
of the whole, or any portion, of the proceeds of vessels, or any
property hereafter captured, condemned as prize, or providing
for the payment of bounty for the sinking or destruction of
vessels of the enemy hereafter occurring in time of war, are
hereby repealed." •
{d) The Hague Conference of 1907 declared that it had agreed
upon a Convention for the Creation of an International Prize
_^ - Court, " animated by the desire to settle in an
The proposed ^ ' "^ ,
intenuLtioiua equitable manner the differences which sometimes
. arise in the course of a naval war in connection
with the decisions of National Prize Courts." This Convention
was not ratified.
Article VII of this Hague Convention provided that " in
the absence of treaty provisions covering a given case, the
Court shall apply the rules of international law. If no gen-
erally recognized rule exists, the Court shall give judgment
in accordance with the general principles of justice and equity."
Certain states were uncertain as to the interpretation which
would be given under this clause of Article VII. Accordingly,
on the invitation of Great Britain, a conference, known as the
> 27 and 28 Vict., c. 25.
* Perels, " Manuel Druit Maritime Int.." p. 467.
* 30 U. S. Ste. at Large. 1007.
860 INTERNATIONAL LAW
International Naval Conference, of ten powers — Germany,
United States, Austria-Hungary, Spain, France, Great Britain,
Interned ii ^^y» Japan, Netherlands, Russia — assembled
HATti Confer- at London, December 4, 1908, and on February
26, 1909, concluded the Declaration of London,
which announces in the Preliminary Provision that : —
** The Signatory Powers are agreed that the rules contained
in the foUowing chapters correspond in substance with the
generally recognized principles of international law," ^
The chapters of this Declaration are : —
1. Blockade in time of war.
2. Contraband of war.
3. Unneutral service.
4. Destruction of neutral prizes,
5. Transfer to a neutral flag.
6. Enemy character.
7. Convoy.
8. Resistance to search.
0. Compensation.
Powers not represented at the London Naval Conference
were invited to accede to the Declaration.
Neither the Convention for the Creation of an International
Prize Court nor the Declaration of London was ratified, though
both may serve as bases for subsequent agreements. The
provisions of the Declaration of London were followed in some
of the wars subsequent to 1909 and often referred to in de-
cisions during and after the World War.
1 For full text of Declaration of London, see Appendix, p. xcii.
APPENDIX I
INSTRUCTIONS FOR THE GOVERNMENT OF
ARMIES OF THE UNITED STATES IN
THE FIELD
WAR DEPARTMENT,
General Okdbbs, | Adjiitant General's Office,
No. 100. i WashinffUm, April 24, 1863.
The following "Instructions for the Government of Armies of the
United States in the Field," prepared by Francis Lieber, LL.D., and
revised by a Board of Officers, of which Major General E. A. Hitchcock
is president, having been approved by the President of the United States,
he commands that they be published for the information of all concerned.
By order of the Secretary of War:
E. D. TOWNSEND,
AasistaTU AdjtitatU GeneraL
INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES
OF THE UNITED STATES IN THE FIELD
SECTION I
Mabtial Law — Military Jurisdiction — Military Necessity —
Retaliation
1
A place, district, or country occupied by an enemy stands, in con-
sequence of the occupation, under the Martial Law of the invading
or occup3ring army, whether any proclamation declaring Martial Law,
or any public warning to the inhabitants, has been issued or not.
Martial Law is the immediate and direct effect and consequence of oc-
cupation or conquest.
The presence of a hostile army proclaims its Martial Law.
U APPENDIX I
2
Martial Law does not cease during the hostile occupation, except
by special proclamation, ordered by the commander in chief; or by
special mention in the treaty of peace concluding the war, when the
occupation of a place or territory continues beyond the conclusion
of peace as one of the conditions of the same.
3
Martial Law in a hostile country consists in the suspension, by the
occupying military authority, of the criminal and civil law, and of the
domestic administration and government in the occupied place or
territory, and in the substitution of military rule and force for the
same, as well as in the dictation of general laws, as far as military
necessity requires this suspension, substitution, or dictation.
The commander of the forces may proclaim that the administration
of all civil and penal law shall continue either wholly or in part, as in
times of peace, unless otherwise ordered by the military authority.
Martial Law is simply military authority exercised in accordance
with the laws and usages of war. Military oppression is not Martial
Law; it is the abuse of the power which that law confers. As Martial
Law is executed by military force, it is incumbent upon those who
administer it to be strictly guided by the principles of justice, honor,
and humanity — virtues adorning a soldier even more than other men,
for the very reason that he possesses the power of his arms against the
imarmed.
5
Martial Law should be less stringent in places and countries fiilly
occupied and fairly conquered. Much greater severity may be exer-
cised in places or regions where actual hostilities exist, or are expected
and must be prepared for. Its most complete sway is allowed — even
in the commander's own country — ^when face to face with the enemy,
because of the absolute necessities of the case, and of the paramount
duty to defend the country against invasion.
To save the country is paramount to all other considerations.
6
All civil and penal law shall continue to take its usual course in the
enemy's places and territories under Martial Lav/, unless interrupted
APPENDIX I iii
or stopped by order of the occupying military power; but all the
functions of the hostile government — legislative, executive, or admin-
istrative— whether of a general, provincial, or local character, cease
under Martial Law, or continue only with the sanction, or, if deemed
necessary, the participation of the occupier or invader.
7
Martial Law extends to property, and to persons, whether they are
subjects of the enemy or aliens to that government.
8
CJonsids, among Anierican and European nations, are not diplomatic
agents. Nevertheless, their offices and persons will be subjected to
Martial Law in cases of urgent necessity only : their property and busi-
ness are not exempted. Any delinquency they commit against the
established military rule may be punished as in the case of any other
inhabitant, and such pimishment furnishes no reasonable ground for
international complaint.
9
The functions of Ambassadors, Ministers, or other diplomatic
agents, accredited by neutral powers to the hostile government, cease,
so far as regards the displaced government; but the conquering or
occupying power usually recognizes them as temporarily accredited
to itself.
10
Martial Law affects chiefly the police and collection of public rev-
enue and taxes, whether imposed by the expelled government or by
the invader, and refers mainly to the support and efficiency of the
army, its safety, and the safety of its operations.
11
The law of war does not only disclaim all cruelty and bad faith con-
cerning engagements concluded with the enemy during the war, but
also the breaking of stipulations solemnly contracted by the belliger-
ents in time of peace, and avowedly intended to remain in force in
case of war between the contracting powers.
It disclaims all extortions and other transactions for individual
gain; all acts of private revenge, or connivance at such acts.
Offenses to the contrary shall be severely pimished, and especially
Ho if committed by officers.
IV APPENDIX I
12
Whenever feasible, Martial Law is carried out in cases of individual
offenders b}*^ Military Courts; but sentences of death shall be executed
only with the approval of the chief executive, provided the urgency
of the case does not require a speedier execution, and then only with
the approval of the chief commander.
13
Military jurisdiction is of two kinds: First, that which is conferred
and defined by statute ; second, that which is derived from the common
law of war. MiUtary offenses under the statute, law must be tried in
the manner therein directed; but military offenses which do not come
within the statute must be tried and punished under the common
law of war. The character of the courts which exercise these juris-
dictions depends upon the local laws of each particular country.
In the armies of the United States the first is exercised by courts-
martial, while cases which do not come within the " Rules and Articles
of War," or the jurisdiction conferred by statute on courts-martial,
are tried by military commissions.
14
Military necessity, as understood by modem civilized nations, con-
sists in the necessity of those measures which are indispensable for
securing the ends of the war, and which are lawful according to the
modern law and usages of war.
15
Military necessity admits of all direct destruction of life or limb of
coined enemies, and of other persons whose destruction is incidentaUy
unavoidable in the armed contests of the war; it allows of the captur-
ing of every armed enemy, and every enemy of importance to the
hostile government, or of peculiar danger to the captor; it allows of
all destruction of property, and obstruction of the w&ys and channels
of traffic, travel, or communication, and of all withholding of sus-
tenance or means of life from the enemy; of the appropriation of what-
ever an enemy's country affords necessary for the subsistence and
safety of the army, and of such deception as does not involve the
breaking of good faith either positively pledged, regarding agreements
entered into during the war, or supposed by the modem law of war
to exist. Men who take up arms against one another in public war do
APPENDIX I V
not cease on this account to be moral beings, responsible to one an-
other and to God.
16
Military necessity does not admit of cruelty — ^that is, the infliction
of suffering for the sake of suffering or for revenge, nor of maiming or
wounding except in fight, nor of torture to extort confessions. It does
not admit of the use of poison in any way, nor of the wanton devasta-
tion of a district. It admits of deception, but disclaims acts of perfidy ;
and, in general, miUtary necessity does not include any act of hos-
tility which makes the return to peace unnecessarily difficult.
17
War is not carried on by arms alone. It is lawful to starve the hos-
tile belligerent, armed or unarmed^ so that it leads to the speedier sub-
jection of the enemy.
18
When a commander of a besieged place expels the noncombatants,
in order to lessen the number of those who consume his stock of pro-
visions, it is lawful, though an extreme measure, to drive them back,
so as to hasten on the surrender.
19
Cbnmianders, whenever admissible, inform the enemy of their in-
tention to bombard a place, so that the noncombatants, and especially
the women and children, may be removed before the bombardment
commences. But it is no infraction of the common law of war to omit
thus to infonn the enemy. Surprise may be a necessity.
20
Public war is a state o£ armed hostility between sovereign nations
or governments. It is a law and requisite of civilized existence that
men live in political, continuous societies, forming organized units,
called states or nations, whose constituents bear, enjoy, and suffer,
advance and retrograde together, in peace and in war,
21
The citizen or native of a hostile country is thus an enemy, as one
of the constituents of the hostile state or nation, and as such is sub-
jected to the hardships of the war.
VI APPENDIX I
22
Nevertheless, as civilization has advanced during the last centuries,
so has likewise steadily advanced, especially in war on land, the distinc-
tion between the private individual belonging to a hostile country and
the hostile country itself, with its men in arms. The principle has
been more and more acknowledged that the unarmed citizen is to be
spared in person, property, and honor as much as the exigencies of
war will admit.
23
Private citizens are no longer murdered, enslaved, or carried off to
distant part«, and the inoffensive individual is as little disturbed in his
private relations as the commander of the hostile troops can afford
to grant in the overruling demands of a vigorous war.
24
The almost universal rule in remote times was, and continues to be
with barbarous armies, that the private individual of the hostile
country is destined to suffer every privation of liberty and pro-
tection, and every disruption of family ties. Protection was, and
still is with uncivilized people, the exception.
25
In modem regular wars of the Europeans, and their descendants in
other portions of the globe, protection of the inoffensive citizen of the
hostile country is the rule; privation and disturbance of private rela-
tions are the exceptions.
26
Commanding generals may cause the magistrates and civil officers
of the hostile country to take the oath of temporary allegiance or an
oath of fidelity to their own victorious government or rulers, and they
may expel every one who declines to do so. But whether they do so
or not, the people and their civil officers owe strict obedience to them
as long as they hold sway over the district or country, at the peril of
their lives.
27
The law of war can no more wholly dispense with retaliation than
can the law of nations, of which it is a branch. Yet civilized nations
acknowledge retaliation as the sternest feature of war. A reckless
enemy often leaves to his opponent no other means of securing him-
self against the repetition of barbarous outrage.
APPENDIX I v3
28
Retaliation will, therefore, never be resorted to as a measure of
mere revenge, but only as a means of protective retribution, and more-
over, cautiously and unavoidably; that is to say, retaliation shall only
be resorted to after careful inquiry into the real occurrence, and the
character of the misdeeds that may demand retribution.
Unjust or inconsiderate retaliation removes the belligerents farther
and farther from the mitigating rules of regular war, and by rapid steps
leads them nearer to the internecine wars of savages.
29
Modern times are distinguished from earlier ages by the existence,
at one and the same time, of many nations and great governments
related to one another in close intercourse.
Peace is their normal condition ; war is the exception. The ultimate
object of all modem war is a renewed state of peace.
The more vigorously wars are pursued, the better it is for humanity.
Sharp wars are brief.
30
Ever since the formation and coexistence of modem nations, and
ever since wars have become great national wars, war has come to be
acknowledged not to be its own end, but the means to obtain great
ends of state, or to consist in defense against wrong; and no conven-
tional restriction of the modes adopted to injure the enemy is any
longer admitted; but the law of war imposes many limitations and
restrictions on principles of justice, faith, and honor.
SECTION II
Public and Privatb Property of the Enemy — Protection op
Persons, and especially of Women; of Religion, the Arts
AND Sciences — Punishment of Crimes against the Inhabitants
OF Hostile Countries
31
A victorious army appropriates all public money, seizes all public
movable property until further direction by its government, and se-
questers for its own benefit or of that of its government all the rev-
enues of real property belonging to the hostile government or nation.
The title to such real property remains in abeyance during military
occupation, and until the conquest is made complete.
viii APPENDIX I
32
A victorious army, by the martial power inherent in the same,
may suspend, change, or abolish, as far as the martial power extends,
the relations which arise from the services due, according to the ex-
isting laws of the invaded country, from one citizen, subject, or native
of the same to another.
The commander of the army must leave it to the ultimate treaty
of peace to settle the permanency of this change.
33
It is no longer considered lawful — on the contrary, it is held to be
a serious breach of the law of war — to force the subjects of the enemy
into the service of the victorious government, except the latter should
proclaim, after a fair and complete conquest of the hostile country
or district, that it is resolved to keep the country, district, or place
permanently as its own and make it a portion of its own country.
34
^ As a general rule, the property belonging to churches, to hospitals,
or other establishments of an exclusively charitable character, to es-
tablishments of education, or foundations for the promotion of knowl-
edge, whether public schools, universities, academies of learning or
observatories, museums of the fine arts, or of a scientific character —
such property is not to be considered public property in the sense of
paragraph 31 ; but it may be taxed or used when the public service
may require it.
35
Classical works of art, libraries, scientific collections, or precious
instruments, such as astronomical telescopes, as well as hospitals,
must be secured against all avoidable injury, even when they are
contained in fortified places whilst besieged or bombarded.
36
If such works of art, libraries, collections, or instruments belonging
to a hostile natioii or government, can be removed without injury,
the ruler of the conquering state or nation may order them to be seized
and removed for the benefit of the said nation. The ultimate owner-
ship is to be settled by the ensuing treaty of peace.
In no case shall they be sold or given away, if captured by the ar-
APPENDIX I IX
mies of the United States, nor shaU they ever be privately appropri-
ated, or wantonly destroyed or injured.
37
The United States acknowledge and protect, in hostile countries
occupied by them, religion and morality ; strictly private property; the
persons of the inhabitants, especially those of women; and the sacred-
ness of domestic relations. Offenses to the contrary shall be rigor-
ously punished.
This rule does not interfere with the right of the victorious invader
to tax the people or their property, to levy forced loans, to billet sol-
diers, or to appropriate property, especially houses, lands, boats or
ships, and churches, for temporary and military uses.
38
Private property, unless forfeited by crimes or by offenses of the
owner, can be seized only by way of military necessity, for the sup-
port or other benefit of the army or of the United States.
If the owner has not fled, the commanding officer will cause re-
ceipts to be given, which may serve the spoliated owner to obtain
indemnity.
39
The salaries of civil officers of the hostile government who remain
in the invaded territory, and* continue the work of their office, and
can continue it according to the circumstances arising out of the war
— such as judges, administrative or police officers, officers of city or
conmiunal governments — are paid from the public revenue of the
invaded territory, until the military government has reason wholly
or partially to discontinue it. Salaries or incomes connected with
purely honorary titles are always stopped.
40
There exists no law or body of authoritative rules of action between
hostile armies, except that branch of the law of nature and nations
which is called the law and usages of war on land.
41
All mimicipal law of the ground on which the armies stand, or of
the countries to which they belong, is silent and of no effect between
armies in the field.
X APPENDIX I
42
Slavery, complicating and confounding the ideas of property (that
is of a thing), and of personality (that is of humanity), exists accord-
ing to municipal or local law only. The law of nature and nations has
never acknowledged it. The digest of the Roman law enacts the
early dictum of the pagan jurist, that ''so far as the law of nature is
concerned, all men are equal." Fugitives escaping from a coimtry in
which they were slaves, villains, or serfs, into another country, have,
for centuries past, been held free and acknowledged free by judicial
decisions of European countries, even though the municipal law of
the coimtry in which the slave had taken refuge acknowledged slavery
within its own dominions.
43
Therefore, in a war between the United States and a belligerent
which admits of slavery, if a person held in bondage by that belligerent
be captured by or come as a fugitive imder the protection of the mil-
itary forces of the United States, such person is immediately entitled
to the rights and privileges of a freeman. To return such person into
slavery would amount to enslaving a free person, and neither the
United States nor any officer under their authority can enslave any
human being. Moreover, a person so made free by the law of war is
under the shield of the law of nations, and the former owner or State
can have, by the law of postliminy, no belligerent lien or claim of
service. •
44
All wanton violence committed against persons in the invaded
country, all destruction of property not commanded by the author-
ized officer, all robbery, all pillage or sacking, even after taking a place
by main force, all rape, wounding, maiming, or killing of such inhab-
itants, are prohibited under the penalty of death, or such other severe
punishment as may seem adequate for the gravity of the offense.
A soldier, officer or private, in the act of committing such violence,
and disobeying a superior ordering him to abstain from it, may be
lawfully killed on the spot by such superior.
45
All captures and booty belong, according to the modem law of war,
primarily to the government of the captor.
Prize money, whether on sea or land, can now only be claimed under
local law.
APPENDIX I Xi
46
Neither officers nor soldiers are allowed to make use of their posi-
tion or power in the hostile country for private gain, not even for
commercial transactions otherwise legitimate. Offenses to the con-
trary conmiitted by commissioned officers will be punished with
cashiering or such other punishment as the nature of the offense may
require; if by soldiers, they shall be punished according to the nature
of the offense.
47
Crimes punishable by all penal codes, such as arson, murder, maim-
ing, assaults, highway robbery, theft, burglary, fraud, forgery, and
rape, if committed by an American soldier in a hostile country against
its inhabitants, are not only punishable as at home, but in all cases
in which death is not inflicted, the severer punishment shall be pre-
ferred.
SECTION III
Dksertkrs — Prisoners of War — Hostages — Booty on the
Battlefield
48
Deserters from the American Army, having entered the service of
the enemy, suffer death if they fall again into the hands of the United
States, whether by capture, or being delivered up to the American
Army; and if a deserter from the enemy, having taken service in the
Army of the United States is captured by the enemy, and pimished
by them with death or otherwise, it is not a breach against the law
and usages of war, requiring redress or retaliation.
49
A prisoner of war is a public enemy armed or attached to the hos-
tile army for active aid, who has fallen into the hands of the captor,
either fighting or wounded, on the field or in the hospital, by indi-
vidual siurrender, or by capitulation.
All soldiers, of whatever species of arms ; all men who belong to the
rising en masse of the hostile country; all those who are attached to
the army for its efficiency and promote directly the object of the war,
except such as are hereinafter provided for; all disabled men or officers
on the field or elsewhere, if captured; all enemies who have thrown
XU APPENDIX I
away their arms and ask for quarter, are prisoners of war, and as such
exposed to the inconveniences as well as entitled to the privileges of a
prisoner of war.
50
Moreover, citizens who accompany an army for whatever purpose,
such as sutlers, editors, or reporters of journals, or contractors, if cap-
tured, may be made prisoners of war, and be detained as such.
The monarch and members of the reigning hostile family, male or
female, the chief, and chief officers of the hostile government, its dip-
lomatic agents, and all persons who are of particular and singular use
and benefit to the hostile army or its government, are, if captured,
on belligerent ground, and if improvided with a safe conduct granted
by the captor's government, prisoners of war.
51
If the people of that portion of an invaded coimtry which is not
yet occupied by the enemy, or of the whole country, at the approach
of a hostile army, rise, under a duly authorized levy, en masse to re-
sist the invader, they are now treated as public enemies, and, if cap-
tured, are prisoners of war.
52
No belligerent has the right to declare that he will treat every cap-
tured man in arms of a levy en masse as a brigand or bandit.
If, however, the people of a country, or any portion of the same,
already occupied by an army, rise against it*, they are violators of the
laws of war, and are not entitled to their protection.
53
The enemy's chaplains, officers of the medical staff, apothecaries,
hospital nurses and servants, if they fall into the hands of the Ameri-
can Army, are not prisoners of war, unless the commander has reasons
to retain them. In this latter case, or if, at their own desire, they are
allowed to remain with their captured companions, they are treated
as prisoners of war, and may be exchanged if the commander sees fit.
54
A hostage is a person accepted as a pledge for the fulfillment of an
agreement concluded between belligerents during the war, or in con-
sequence of a war. Hostages are rare in the present age.
APPENDIX I Xlli
55
If a hostage is accepted, he is treated like a prisoner of war^ ac-
cording to rank and condition, as circumstances may admit.
56
A prisoner of war is subject to no punishment for being a public
, enemy, nor is any revenge wreaked upon him by the intentional in-
fliction of any suffering, or disgrace, by cruel imprisonment, want of
food, by mutilation, death, or any other barbarity.
57
So soon as a man is armed by a sovereign government and takes
the soldier's oath of fldelity, he is a belligerent; his killing, wounding,
or other warlike acts are not individual crimes or offenses. No bellig-
erent has a right to declare that enemies of a certain class, color, or
condition, when properly organized as soldiers, will not be treated by
him as public enemies.
58
The law of nations knows of no distinction of color, and if an enemy
of the United States should enslave and sell any captured persons
of their army, it would be a case for the severest retaliation, if not
redressed upon complaint.
The United States cannot retaliate by enslavement ; therefore death
must be the retaliation for this crime against the law of nations.
59
A prisoner of war remains answerable for his crimes committed
against the captor's army or people, committed before he was cap-
tured, and for which he has not been punished by his own authorities.
All prisoners of war are liable to the infliction of retaliatory meas-
ures.
60
It is against the usage of modern war to resolve, in hatred and
revenge, to give no quarter. No body of troops has the right to de-
clare that it will not give, and therefore will not expect, quarter; but
a commander is permitted to direct his troops to give no quarter, in
great straits, when his own salvation makes it impossible to cumber
himself with prisoners.
XIV APPENDIX I
61
Troops that give no quarter have no right to kill enemies already
disabled on the ground, or prisoners captured by other troops.
62
All troops of the enemy known or discovered to give no quarter in
general, or to any portion of the army, receive none.
63
Troops who fight in the uniform of their enemies, without any
plain, striking, and uniform mark of distinction of their own, can
expect no quarter.
64
If American troops capture a train containing uniforms of the en-
emy, and the commander considers it advisable to distribute them
for use among his men, some striking mark or sign must be adopted
to distinguish the American soldier from the enemy.
65
The use of the enemy's national standard, flag, or other emblem of
nationality, for the purpose of deceiving the enemy in battle, is an act
of perfidy by which they lose all claim to the protection of the laws of
war.
66
Quarter having been given to an enemy by American troops, under
a misapprehension of his true character, he may. nevertheless, be or-
dered to suffer death if, within three days after the battle, it be dis-
covered that he belongs to a corps which gives no quarter.
67
The law of nations allows every sovereign government to make
war upon another sovereign state, and, therefore, admits of no rules
or laws different from those of regular warfare, regarding the treat-
ment of prisoners of war, although they may belong to the army of a
government which the captor may consider as a wanton and unjust
assailant.
68
Modem wars are not internecine wars, in which the killing of the
enemy is the object. The destruction of the enemy in modem war,
APPENDIX I XV
and, indeed, modem war itself, are means to obtain that object of the
belligerent which lies beyond the war.
Unnecessary or revengeful destruction of life is Dot lawful.
69
Outposts, sentinels, or pickets are not to be fired upon, except to
drive them in, or when a positive order, special or general, has been
issued to that effect.
70
The use of poison in any manner, be it to poison wells, or food, or
arms, is wholly excluded from modem warfare. He that uses it puts
himself out of the pale of the law and usages of war.
71
Whoever intentionally inflicts additional wounds on an enemy al-
ready whoUy disabled, or kills such an enemy, or who orders or en-
courages soldiers to do so, shall suffer death, if duly convicted, whether
he belongs to the Army of the United States, or is an enemy captured
after having committed his misdeed.
72
Money and other valuables on the person of a prisoner, such as
watches or jewelry, as well as extra clothing, are regarded by the
American Army as the private property of the prisoner, and the ap-
propriation of such valuables or money is considered dishonorable,
and is prohibited.
Nevertheless, if large sums are found upon the persons of prisoners,
or in their possession, they shall be taken from them, and the surplus,
after providing for their own support, appropriated for the use of the
army, imder the direction of the commander, unless otherwise ordered
by the government. Nor can prisoners claim, 83 private property,
large sums foimd and captured in their train, although they have been
placed in the private luggage of the prisoners.
73
All officers, when captured, must surrender their side arms to the
captor. They may be restored to the prisoner in marked cases, by
the commander, to signalize admiration of his distinguished bravery
or approbation of his humane treatment of prisoners before his cap-
XVI APPENDIX I
ture. The captured officer to whom they may be restored camiot
wear them during captivity.
74
A prisoner of war, being a public enemj*; is the prisoner of the gov-
ernment, and not of the captor. No ransom can be paid by a pris-
oner of war to his individual captor or to any officer in conmiand.
The government alone releases captives, according to rules prescribed
by itself.
75
Prisoners of war are subject to confinement or imprisonment such
as may be deemed necessary on account of safety, but they are to be
subjected to no other intentional suffering or indignity. The con-
finement and mode of treating a prisoner may be varied during his
captivity according to the demands of safety.
76
Prisoners of war shall be fed upon plain and wholesome food, when-
ever practicable, and treated with humanity.
They may be required to work for the benefit of the captor's gov-
ernment, according to their rank and condition.
77
A prisoner of war who escapes may be shot or otherwise killed in his
ffight; but neither death nor any other punishment shall be inflicted
upon him simply for his attempt to escape, which the law of war does
not consider a crime. Stricter means of security shall be used after
an unsuccessful attempt at escape.
If, however, a conspiracy is discovered, the purpose of which is a
united or general escape, the conspirators may be rigorously punished,
even with death; and capital punishment may also be infficted upon
prisoners of war discovered to have plotted rebellion against the au-
thorities of the captors, whether in union with fellow prisoners or
other persons.
78
If prisoners of war, having given no pledge nor made any promise
on their honor, forcibly or otherwise escape, and are captured again
in battle after having rejoined their own army, they shall not be
punished for their escape, but shall be treated as simple prisoners of
war, although they will be subjected to stricter confinement.
APPENDIX I XVU
79
Every captured wounded enemy shall be medically treated, accord-
ing to the ability of the medical staff.
80
Honorable men, when captured, will abstain from giving to the
enemy information concerning their own army, and the modern law
of war permits no longer the use of any violence against prisoners in
order to extort the desired information or to punish them for having
given false information.
SECTION IV
Partisans — Armed Enemies not belonging to the Hostilb Armt
— Scouts — ^Armed Prowlers — ^War-rebels
81
Partisans are soldiers armed and wearing the uniform of their army,
but belonging to a corps which acts detached from the main body for
the purpose of making inroads into the territory occupied by the en-
emy. If captured, they are entitled to all the privileges of the pris-
oner of war.
82
Men, or squads of men, who commit hostilities, whether by fighting,
or inroads for destruction or plunder, or by raids of any kind, without
commission, without being part and portion of the organized hostile
army, and without sharing continuously in the war, but who do so
with intermitting returns to their homes and avocations, or with the
occasional assumption of the semblance of peaceful pursuits, divestin&c
themselves of the character or appearance of soldiers — such men, or
squads of men, are not public enemies, and, therefore, if captured, are
not entitled to the privileges of prisoners of war, but shall be treated
summarily as highway robbers or pirates.
83
Scouts, or single soldiers, if disguised in the dress of the country
or in the uniform of the army hostile to their own, employed in obtain-
ing information, if found within or lurking about the lines of the
captor, W9 treated ss spies, md suffer death.
Xviii APPENDIX I
84
Armed prowlers, by whatever names they may be called, or persons
of the enemy's territory, who steal within the lines of the hostile army
for the purpose of robbing, killing, or of destroying bridges, roads, or
canals, or of robbing or destroying the mail, or of cutting the tele-
graph wires, are not entitled to the privileges of the prisoner of war.
85
War-rebels are persons within an occupied territory who rise in
arms against the occupying or conquering army, or against the author-
ities established by the same. If captured, they may suffer death,
whether they rise singly, in small or large bands, and whether called
upon to do so by their own, but expelled, government or not. They
are not prisoners of war; nor are they if discovered and secured before
their conspiracy has matured to an actual rising or armed violence.
SECTION V
SAFB-coNDUcrr — Spies — ^War-traitors — Captured Messengers
86
All intercourse between the territories occupied by belligerent ar-
mies, whether by traffic, by letter, by travel, or in any other way,
ceases. This is the general rule, to be observed without special
proclamation.
Exceptions to this rule, whether by safe-conduct, or permission to
trade on a small or large scale, or by exchanging mails, or by travel
from one territory into the other, can take place only according to
agreement approved by the government, or by the highest military
authority.
Contraventions of this rule are highly pimishable.
87
Ambassadors, and all other diplomatic agents of neutral powers,
accredited to the enemy, may receive safe-conducts through the terri-
tories occupied by the belligerents, unless there are military reasons
to the contrary, and unless they may reach the place of their'destina-
tion conveniently by another route. It implies no international af^
APPENDIX I nx
front if the safe-conduct is declined. Such passes are usually given
by the supreme authority of the State and not by subordinate officers.
88
A spy IS a person who secretly, in disguise or under false pretense,
seeks information with the intention of communicating it to the
enemy.
The spy is punishable with death by hanging by the neck, whether
or not he succeed in obtaining the information or in conveying it to
the enemy.
89
If a citisen of the United, States obtains information in a legitimate
manner, and betrays it to the enemy, be he a military or civil officer,
or a private citizen, he shall suffer death.
90
A traitor under the law of war, or a war-traitor, is a person in a place
or district imder martial law who, imauthorized by the military com-
mander, gives information of any kind to the enemy, or holds inter-
course with him.
91
The war-traitor is alwa}rs severely punished. If his offense consists
in betraying to the enemy anything concerning the condition, safety,
operations, or plans of the troops holding or occupying the place or
district, his punishment is death.
92
If the citizen or subject of a country or place invaded or conquered
gives information to his own government, from which he is separated
by the hostile army, or to the army of his government, he is a war-
traitor, and death is the penalty of his ofifense.
93
All armies in the field stand in need of guides, and impress them if
they cannot obtain them otherwise.
94
No person having been forced by the enemy to serve as guide is
punishable for having done so.
XX APPENDIX I
95
If a citizen of a hostile and invaded district voluntarily serves as a
guide to the enemy, or offers to do so, he is deemed a war-traitor, and
shall suffer death.
96
A citizen serving voluntarily as a guide against his own country
commits treason, and will be dealt with according to the law of his
country.
97
Guides, when it is clearly proved that they have misled intentionally,
may be put to death.
98
All unauthorized or secret communication with the enemy is con-
sidered treasonable by the law of war.
Foreign residents in an invaded or occupied territory, or foreign vis-
itors in the same, can claim no immunity from this law. They may
communicate with foreign parts, or with the inhabitants of the hostile
country, so far as the military authority permits, but no further.
Instant expulsion from the occupied territory would be the very least
punishment for the infraction of this rule.
99
A messenger carrying written dispatches or verbal messages from
one portion of the army, or from a besieged place, to another portion
of the same army, or its government, if armed, and in the uniform of his
army, and if captured, while doing so, in the territory occupied by
the enemy, is treated by the captor as a prisoner of war. If not in
uniform, nor a soldier, the circumstances connected with his capture
must determine the disposition that shall be made of him.
100
A messenger or agent who attempts to steal through the territory
occupied by the enemy, to further, in any manner, the interests of the
enemy, if captured, is not entitled to the privileges of the prisoner of
war, and may be dealt with according to the circumstances of the case.
101
While deception in war is admitted as a just and necessary means
of hostility, and is consistent with honorable warfare, the commoQ
APPENDIX I XXI
law of war allows even capital punishment for clandestine or treach-
erous attempts to injure an enemy, because they are so dangerous,
and it is so difficult to guard against them.
102
The law of war, like the criminal law regarding other offenses, makes
no difference on account of the difference of sexes, concerning the spy,
the war-traitor, or the war-rebel.
103
Spies, war-traitors, and war-rebels are not exchanged according
to the common law of war. The exchange of such persons would re-
quire a special cartel, authorized by the government, or, at a great
distance from it, by the chief commander of the army in the field.
104
A successful spy or war-traitor, safely returned to his own army,
and afterwards captured an an enemy, is not subject to punishment
for his acts as a spy or war-traitor, but he may be held in closer cus-
tody as a person individually dangerous.
SECTION VI
Exchange of Prisoners — Flags of Truce — Abuse of the Flag
OF Truce — Flags of Protection
105
Exchanges of prisoners take place — number for number — ^rank for
rank — ^wounded for wounded — with added condition for added con-
dition— such, for instance, as not to serve for a certain period.
106
In exchanging prisoners of war, such numbers of persons of inferior
rank may be substituted as an equivalent for one of superior rank as
may be agreed upon by cartel, which requires the sanction of the gov-
ernment, or of the commander of the army in the field.
107
A prisoner of war is in honor bound truly to state to the captor
his rank; and he is not to assume a lower rank than belongs to him,
XXn APPENDIX I
in order to cause a more advantageous exchange, nor a higher rank,
for the purpose of obtaining better treatment.
Offenses to the contrary have been justly punished by the com-
manders of released prisoners, and may be good cause for refusing
to release such prisoners.
108
The surplus nimiber of prisoners of war remaining after an ex-
change has taken place is sometimes released either for the payment
of a stipulated sum of money, or, in urgent cases, of pro^dsion, clothing,
or other necessaries.
Such arrangement, however, requires the sanction of the highest
authority.
109
The exchange of prisoners of war is an act of convenience to both
belligerents. If no general cartel has been concluded, it cannot be
demanded by either of them. No belligerent is obliged to exchange
prisoners of war.
A cartel is voidable as soon as either party has violated it.
110
No exchange of prisoners shaU be made except after complete cap-
ture, and after an accurate account of them, and a list of the captured
officers, has been taken.
Ill
The bearer of a flag of truce cannot insist upon being admitted.
He must always be admitted with great caution. Unnecessary fre-
quency is carefully to be avoided.
112
If the bearer of a flag of truce offer himself during an engagement,
he can be admitted as a very rare exception only. It is no breach of
good faith to retain such flag of truce, if admitted during the engage-
ment. Firing is not required to cease on the appearance of a flag of
truce in battle.
113
If the bearer of a flag of truce, presenting himself during an engage-
ment, is killed or wounded, it furnishes no ground of complaint what-
ever.
APPENDIX I XXlli
114
If it be discovered, and fairly proved, that a flag of truce has been
abused for surreptitiously obtaining military knowledge, the bearer
of the flag thus abusing his sacred character is deemed a spy.
So sacred Lb the character of a flog of truce, and so neccHsary is its
sacredness, that while its abuse is an especially heinous offense, great
caution is requisite, on the other hand, in convicting the bearer of a
flag of truce as a spy.
115
It is customary to designate by certain flags (usually yeUow) the
hospitals in places which are shelled, so that the besieging enemy may
avoid firing on them. The same has been done in battles, when hos-
pitals are situated within the field of the engagement.
116
Honorable belligerents often request that the hospitals within the
territory of the enemy may be designated, so that they may be spared.
An honorable belligerent aUows himself to be guided by flags or
signals of protection as much as the contingencies and the necessities
of the fight wiU permit.
117
It is justly considered an act of bad faith, of infamy or fiendishness,
to deceive the enemy by flags of protection. Such act of bad faith
may be good cause for refusing to respect such flags.
118
The besieging belligerent has sometimes requested the besieged to
designate the buildings containing collections of works of art, scien-
tific museums, astronomical observatories, or precious libraries, so
that their destruction may be avoided as much as possible.
SECTION VII
The Parole
119
Prisoners of war may be released from captivity by exchange, and,
under certain circumstances, also by parole.
XXIV APPENDIX I
120
The term "Parole" designates the pledge of individual good faith
and honor to do, or to omit doing, certain acts after he who gives his
parole shall have been dismissed, wholly or partially, from the power
of the captor.
121
The pledge of the parole is always an individual, but not a private
act.
122
The parole applies chiefly to prisoners of war whom the captor al-
lows to return to their country, or to live in greater freedom within
the captor's country or territory, on conditions stated in the parole.
123
Release of prisoners of war by exchange is the general rule; release
by parole is the exception.
124
Breaking the parole is punished with death when the person break-
ing the parole is captured again.
Accurate lists, therefore, of the paroled persons must be kept by
the belligerents.
125
When paroles are given and received there must be an exchange of
two written documents, in which the name and rank of the paroled
individuals are accurately and truthfully stated.
»
126
Commissioned officers only are allowed to give their parole, and
they can give it only with the permission of their superior, as long as
a superior in rank is within reach.
127
No nonconmilssioned officer or private can give his parole except
through an officer. Individual paroles not given through an officer
are not only void, but subject the individuals giving them to the pun-
ishment of death as deserters. The only admissible exception is
where individuals, properly separated from their commands, have
suffered long confinement without the possibility of being paroled
through an officer.
APPENDIX I XXV
128
No paroling on the battlefield: no paroling of entire bodies of troops
after a battle; and no dismissal of large numbers of prisoners, with a
general declaration that they are paroled, is permitted, or of any
value.
129
In capitulations for the surrender of strong places or fortified camps
the conunanding officer, in cases of urgent necessity, may agree that .
the troops under his command shall not fight again during the war,
xmless exchanged.
130
The usual pledge given in the parole is not to serve during the exist-
ing war, unless exchanged.
This pledge refers only to the active service in the field, against the
paroling belligerent or his allies actively engaged in the same war.
These cases of breaking the parole are patent acts, and can be visited
with the pimishment of death ; but the pledge does not refer to internal
service, such as recruiting or drilling the recruits, fortifying places not
besieged, quelling civil commotions, fighting against belligerents un-
connected with the paroling belligerents, or to civil or diplomatic serv-
ice for which the paroled officer may be employed.
131
If the government does not approve of the parole, the paroled officer
must return into captivity, and should the enemy refuse to receive
him, he is free of his parole.
132
A belligerent government may declare, by a general order, whether
it will allow paroling, and on what conditions it will allow it. Such
order is commimicated to the enemy.
133
No prisoner of war can be forced by the hostile government to pa-
role himself, and no government is obliged to parole prisoners of war,
or to parole all captured officers, if it paroles any. As the pledging of
the parole is an individual act, so is paroling, on the other hand, an
act of choice on the part of the belligerent.
XXvi APPENDIX I
134
The commander of an occupying army may require of the civil
officers of the enemy, and of its citizens, any pledge he may consider
necessary for the safety or security of his army, and upon their fulure
to give it he may arrest, confine, or detain them.
SECTION VIII
Armistice — Capitulation
135
An armistice is the cessation of active hostilities for a period agreed
between belligerents. It must be agreed upon in writing, and duly
ratified by the highest authorities of the contending parties.
136
If an armistice be declared, without conditions, it extends no fur-
ther than to require a total cessation of hostilities along the front of
both belligerents.
If conditions be agreed upon, they should be clearly expressed, and
must be rigidly adhered to by both parties. If either party violates
any express condition, the armistice may be declared null and void
by the other.
137
An armistice may be general, and valid for all points and lines of
the belligerents ; or special, that is, referring to certain troops or certain
localities only.
An armistice may be concluded for a definite time ; or for an indefinite
time, during which either belligerent may resume hostilities on giving
the notice agreed upon to the other.
138
The motives which induce the one or the other belligerent to con-
clude an armistice, whether it be expected to be preliminary to a
treaty of peace, or to prepare during the armistice for a more vigorous
prosecution of the war, does in no way affect the character of the
armistice itself.
139
An armistice is binding upon the belligerents from the day of the
agreed commencement ; but the officers of the armies are responsible
APPENDIX I XXVU
from the day only when they receive official infonnation of its exis-
tence.
140
Commanding officers have the right to conclude armistices binding
on the district over which their command extends, but such armistice
is subject to the ratification of the superior authorityi and ceases so
soon as it is made known to the enemy that the armistice Ls not rati-
fied, even if a certain time for the elapsing between giving notice of
cessation and the resumption of hostilities should have been stipulated
for.
141
It is incimibent upon the contracting parties of an armistice to stip-
ulate what intercotirse of persons or traffic between the inhabitants of
the territories occupied by the hostile armies shaU be allowed, if any.
If nothing is stipulated the intercourse remains suspended, as dur-
ing actual hostilities.
142
An armistice is not a partial or a temporary peace; it is only the
suspension of military operations to the extent agreed upon by the
parties.
143
When an armistice is concluded between a fortified place and the
army besieging it, it is agreed by all the authorities on this subject
that the besieger must cease all extension, perfection, or advance of
his attacking works as much so as from attacks by main force.
But as there is a difference of opinion among martial jurists, whether
the besieged have the right to repair breaches or to erect new works
of defense within the place during an armistice, this point should be
determined by express agreement between the parties.
144
So soon as a capitulation is signed, the capitulator has no right to
demolish, destroy, or injiu*e the works, arms, stores, or ammunition,
in his possession, during the time which elapses between the signing
and the execution of the capitulation, unless otherwise stipulated in
the same.
145
When an armistice is clearly broken by one of the parties, the other
party is released from all obligation to observe it.
XXViii APPENDIX I
146
Prisoners taken in the act of breaking an armistice must be treated
as prisoners of war, the officer alone being responsible who ^ves the
order for such a violation of an armistice. The highest authority of
the helUgerent aggrieved may demand redress for the infraction of an
armistice.
147
Belligerents sometimes conclude an armistice while their pleni-
potentiaries are met to discuss the conditions of a treaty of peace;
but plenipotentiaries may meet without a preliminary armistice; in
the latter case, the war is carried on without any abatement.
SECTION IX
Assassination
148
The law of war does not allow proclaiming either an individual be-
longing t^ the hostile army, or a citizen, or a subject of the hostile
government, an outlaw, who may be slain without trial by any captor,
any more than the modem law of peace allows such intentional out-
lawry; on the contrary, it abhors such outrage. The sternest retalia-
tion should follow the murder committed in consequence of such
proclamation, made by whatever authority. Civilized nations look
with horror upon offers of rewards for the assassination of enemies as
relapses into barbarism.
SECTION X
Insurrection — Civil War — ^Rebellion
149
Insurrection is the rising of people in arms against their govern-
ment, or a portion of it, or against one or more of its laws, or against
an officer or officers of the government. It may be confined to mere
armed resistance, or it may have greater ends in view.
150
Civil war is war between two or more portions of a country or state,
each contending for the mastery of the whole, and each claiming to
APPENDIX I XXIX
be the legitimate government. The term is also sometimes applied
to war of rebellion, when the rebellious provinces or portion of the
state are contiguous to those containing the seat of government.
151
The term "rebellion" is appUed to an insurrection of large extent,
and is usually a war between the legitimate government of a country
and portions of provinces of the same who seek to throw off their al-
legiance to it and set up a government of their own.
152
When humanity induces the adoption of the rules of regular war
toward rebels, whether the adoption is partial or entire, it does in no
way whatever imply a partial or complete acknowledgment of their
government, if they have set up one, or of them, as an independent
and sovereign power. Neutrals have no right to make the adoption
of the. rules of war by the ajssailed government toward rebels the
ground of their own acknowledgment of the revolted people as an
independent power.
153
Treating captured rebels as prisoners of war, exchanging them, con-
cluding of cartels, capitulations, or other warlike agreements with them ;
addressing officers of a rebel army by the rank they may have in the
same; accepting flags of truce; or, on the other hand, proclaiming
martial law in their territory, or levying war-taxes or forced loans, or
doing any other act sanctioned or demanded by the law and usages
of public war between sovereign belligerents, neither proves nor es-
tablishes an acknowledgment of the rebellious people, or of the gov-
ernment which they may have erected, as a public or sovereign power.
Nor does the adoption of the rules of war toward rebels imply an en-
gagement with them extending beyond the limits of these rules. It
is victory in the field that ends the strife and settles the future rela-
tions between the contending parties.
154
Treating, in the field, the rebellious enemy according to the law
and usages of war has never prevented the legitimate government
from trying the leaders of the rebellion or chief rebels for high treason,
and from treating them accordingly, unless they are included in a
general amnesty.
XXX APPENDIX I
155
All enemies in regular war are divided into two general cla
that is to say, into combatants and noncombatants, or unarmed citi-
zens of the hostile government.
The military commander of the legitimate government, in a war of
rebellion, distinguishes between the loyal citizen in the revolted por-
tion of the country and the disloyal citizen. The disloyal citizens may
further be classified into those citizens known to sympathize with the
rebellion without positively aiding it, and those who, without taking
up arms, give positive aid and comfort to the rebellious enemy with-
out being bodily forced thereto.
156
Common justice and plain expediency require that the military com-
mander protect the manifestly loyal citizens, in revolted territories,
against the hardships of the war as much as the oonmion misfortune
of all war admits.
The commander will throw the burden of the war, as much as lies
within his power, on the disloyal citizens, of the revolted portion or
province, subjecting them to a stricter police than the noncombatant
enemies have to suffer in regular war; and if he deems it appropriate,
or if his government demands of him that every citizen shall, by an
oath of allegiance, or by some other manifest act, declare his fidelity
to the legitimate government, he may expel, transfer, imprison, or fine
the revolted citizens who refuse to pledge themselves anew as citizens
obedient to the law and loyal to the government.
Whether it is expedient to do so, and whether reliance can be placed
upon such oaths, the commander or his government has the right to
decide.
157
Armed or unarmed resistance by citizens of the United States against
the lawful movements of their troops is lev3ring war against the United
States, and is therefore treason.
APPENDIX II
DECLARATION OF PARIS
The Plenipotentiaries who signed the Treaty of Paris of the thirtieth
of March, one thousand eight hundred and fifty-six, assembled in
conference,
Considering:
That maritime law in time of war has long been the subject of de-
plorable disputes;
That the uncertainty of the law and of the duties in such a matter
give rise to differences of opinion between neutrals and belligerents
which may occasion serious difiiculties, and even conflicts; that it is
consequently advantageous to establish a uniform doctrine on so im-
portant a point ;
That the Plenipotentiaries assembled in Congress at Paris cannot
better respond to the intentions by which their Governments are
animated, than by seeking to introduce into international relations
fixed principles, in this respect.
The above-mentioned Plenipotentiaries, being duly authorized,
resolved to concert among themselves as to the means of attaining
this object; and having come to an agreement, have adopted the fol-
lowing solemn declaration:
1. Privateering is and remains abolished ;
2. The neutral flag covers enemy's goods, with the exception of
contraband of war;
3. Neutral goods, with the exception of contraband of war, are not
liable to capture under enemy's flag;
4. Blockades, in order to be binding, must be effective — ^that is to
say, maintained by a force sufficient really to prevent access to the
coast of the enemy.
The Governments of the undersigned Plenipotentiaries engage to
bring the present Declaration to the knowledge of the States which
XXxii APPENDIX n
have not taken part in the Congress of Paris, and to invite them to
accede to it. »
Convinced that the maxims which they now proclaim cannot but
be received with gratitude by the whole world, the undersigned Pleni*
))otentiaries doubt not that the efforts of their Governments to obtain
the general adoption thereof will be crowned with full success.
The present declaration is not and shall not be binding, except
between those Powers who have acceded, or shall accede, to it.
Done at Paris, the sixteenth of April, one thousand eight hundred
and fifty-six.
APPENDIX III
CONVENTION FOR THE AMELIORATION OF THE
CONDITION OF THE WOUNDED IN ARMIES
IN THE FIELD. GENEVA, JULY 6, 1906
(Names of thirty-five States)
Being equally animated by the desire to lessen the inherent evils of
warfare as far as is within their power, and wishing for this purpose to
improve and supplement the provisions agreed upon at Geneva on
August 22, 1864, for the amelioration of the condition of the wounded
in armies in the field.
Have decided to conclude a new convention to that effect, and have
appointed as their plenipotentiaries, to wit :
(Names of delegates)
Who, after having communicated to each other their full powers,
found in good and due form, have agreed on the following:
(Translation)
CHAPTER I
THE SICK AND WOUNDED
Article 1. Ofiicers, soldiers, and other persons officially attached to
armies who are sick or wounded shall be respected and cared for, with-
out distinction of nationality, by the belligerent in whose power they
are.
A beUigerent, however, when compelled to leave his wounded in the
hands of his adversary, shall leave with them, so far as military con-
ditions permit, a portion of the personnel and materiel of his sanitary
service to assist in caring for them.
xxxiii
XXxiv APPENDIX ni
Art. 2. Subject to the care that must be taken of them under the
preceding article, the sick and woimded of an Army who fall into the
power of the other belligerent become prisoners of war, and the genera]
rules of international law in respect to prisoners become applicable to
them.
The belligerents remain free, however, to mutually agree upon such
clauses, by way of exception or favor, in regard to sick and wounded
prisoners as they may deem proper. They shall have authority to
agree:
1. To mutuaUy return the sick and wounded left on the field of battle
after an engagement.
2. To send back to their own country the sick and wounded who
have recovered, or who are in a condition to be transported, and whonx
they do not desire to retain as prisoners.
3. To send the sick and wounded of the enemy to a neutral state, with
its consent and on condition that it shall charge itself with their intern-
ment until the close of hostilities.
Art. 3. After every engagement the belligerent who remains in
possession of the field of battle shall take measures to search for the
wounded and to protect the wounded and dead from spoliation and
ill treatment.
He will see that a careful examination is made of the bodies of the
dead prior to their interment or incineration.
Art. 4. As soon as possible each belligerent shall forward to the
authorities of their country or Army the military tokens, or badges of
identification, found upon the bodies of the dead, together with a list
of the sick and wounded taken in charge by him.
Belligerents will keep each other mutually advised of interments and
transfers, together with admissions to hospitals and deaths which occur
among the sick and wounded in their hands. They will coUect all
personal belongings, valuables, letters, etc., which are found upon the
field of battle, or have been left by the sick or wounded, or by those
who have died in sanitary formations or other establishments, for
transmission to interested persons through the authorities of their own
country.
Art. 5. Military authority may make an appeal to the charitable
zeal of the inhabitants to receive and, under his supervision, to care for
the sick and wounded of the armies, by granting to persons responding
to such appeals special protection and certain immunities.
APPENDIX in XXXV
CHAPTER n
8ANITART FORMATIONS AND E8TABU8HMENTS
Abt. 6. Movable Banitary formations (t. e., those which are intended
to accompany armies in the field) and the fixed establishments belong-
ing to the sanitary service shall be protected and respected by belliger-
ents.
Abt. 7. The protection due to sanitary formations and establish-
ments ceases if they are used to commit acts injurious to the enemy.
Abt. 8. A sanitary formation or establishment shall not be deprived
of the protection accorded by article 6 by the fact that:
1. The personnel of a formation or establishment is armed and uses
its arms in self-defense or in defense of its sick and wounded.
2. In the absence of armed hospital attendants, the formation is
guarded by an armed detachment or by sentinels regularly established.
3. Arms or cartridges, taken from the wounded and not yet turned
over to the proper authorities, are found in the formation or establish-
ment.
CHAPTER III
PERSONNEL
Art. 9. The personnel exclusively charged with the removal, trans-
portation, and treatment of the sick and wounded, as well as with the
administration of sanitary formations and establishments, and the
chaplains attached to armies shall be respected and protected under aU
circumstances. If they fall into the hands of the enemy they shaU
not be regarded as prisoners of war.
These provisions apply to the personnel of the guard of sanitary
formations and establishments in the case provided for in section 2
of article 8.
Art. 10. The personnel of volunteer aid societies, duly recognized
and authorized by their respective governments, who are employed
in the sanitary formations and establishments of armies, are assimi-
lated to the personnel contemplated in the preceding article, upon
condition that the said personnel shall be subject to military laws
and regulations.
Each state shall make known to the other either in time of peace or
at the opening or during the progress of hostilities — in any case.
•
XXXVl APPENDIX in
before actual emplo3rment — the names of the societies which it has
authorized to render assistance, under its responsibility, in the official
sanitary service of its armies.
Art. 11. a recognized society of a neutral state cannot lend the
services of its sanitary personnel and formations to a belligerent except
with the prior consent of its own government and the authority of such
belligerent. The belligerent who has accepted such assistance is
required to notify the enemy before making any use thereof.
Art. 12. Persons described in articles 9, 10, and 11 will continue in
the exercise of their functions after they have faUen into the power of
the enemy and under his direction.
When their co-operation is no longer indispensable they will be sent
back to their army or country, within such period and by such route
as may accord with military necessity.
They will carry with them such effects, instnmients, arms, and
horses as are their private property.
Art. 13. While they remain in his power, the enemy wiU secure to
the personnel mentioned in article 9 the same pay and allowances to
which persons of the same grade in his own Army are entitled.
CHAPTER IV
MATERIEL
• Art. 14. Mobile sanitary formations that have faUen into the power
of the enemy shall retain their materiel and means of transportation
of whatever kind, including teams, whatever may be the means of
transportation, and the conducting personnel.
Competent military authority, however, shaU have the right to
employ them in caring for the sick and wounded. The restitution of
the materiel shall take place in accordance with the conditions pre-
scribed for the sanitary personnel, and, as far as possible, at the same
time.
Art. 15. Buildings and materiel pertaining to fixed establishments
shall remain subject to the laws of war, but cannot be diverted from
their use so long as they are necessary for the sick and wounded)
Conmianders of troops engaged in operations, however, may use them,
in case of important military necessity, if before such use, the sick
and wounded who are in them have been provided for.
Art. 16. The materiel of aid societies, admitted to the benefits of
APPENDIX III xxxvii
this convention in conformity to the conditions herein prescribed, is
regarded as private property and, as such, will be respected under all
circumstances, save that it is subject to the right of requisition by
belligerents in conformity to the laws and usages of war.
CHAPTER V
CONVOYS OP EVACUATION
Abt. 17. Convoys of evacuation shall be treated as movable sanitary
formations with the following exceptions:
1. A belligerent intercepting a convoy may, if required by military
necessity, break up such convoy by charging himself with the care of
the sick and wounded whom it contains.
2. In this case the obligation to restore the sanitary personnel, as
provided for in article 12, shall be extended to include the entire
military personnel employed, under proper authority, in the trans-
portation and protection of the convoy.
The obligation to return the sanitary materiel as provided for in
article 14 shall apply to railway trains and vessels intended for interior
navigation which have been especially equipped for evacuation pur-
poses, together with the equipment of such vehicles, trains, and vessels
which belong to the sanitary service.
Military vehicles, with their teams, other than those belonging to
the sanitary service, may be captured.
Civilians and various means of transportation obtained by requisi-
tion, including railway materiel and vessels utilized for convoys, are
subject to the general rules of international law.
CHAPTER VI
DISTINCTIVE EMBLEM
Art. 18. In homage to Switzerland the heraldic sign of the red cross
on a white ground, formed by the reversal of the federal colors, is
continued as the emblem and distinctive sign of the sanitary service of
armies.
Akt. 19. This emblem appears on flags and brassards as well as upon
all materiel appertaining to the sanitary service, with the permission
of competent military authority.
xxxviii APPENDIX m
Art. 20. The personnel protected by the provisions of paragn^h 1,
article 9, and articles 10 and 11 will wear attached to the left arm a
brassard bearing a red cross on a white ground^ which will be issued
and stamped by competent military authority, and accompanied by a
certificate of identity in the case of persons attached to the sanitary
service of armies who do not have military uniform.
Art. 21. The distinctive flag of the convention can only be displayed,
with the consent of the military authorities over sanitary formations
and establishments which the convention provides shall be respected,
and with the consent of the military authorities. It shall be ac-
companied by the national flag of the belligerent to whose service the
formation or establishment is attached.
Sanitary formations which have fallen into the power of the enemy,
however, shall fly no other flag than that of the Red Cross so long as
they continue in that situation.
Art. 22. Neutral sanitary formations which, under the conditions
set forth in article 11, have been authorized to render their services
shall fly, with the flag of the convention, the national flag of the belliger-
ent to which they are attached. The provisions of the second para-
graph of the preceding article are applicable to them.
Art. 23. The emblem of the red cross on a white ground and the
words Red Cross or Geneva Cross may only be used, whether in time of
peace or war, to protect or designate sanitary formations and establish-
ments, the personnel and materiel protected by the convention.
CHAPTER VII
application and execution op the convention
Art. 24. The provisions of the present convention are obligatory
on the contracting powers only, in case of war between two or more of
them. The said provisions shall cease to be obligatory from the time
when one of the belligerent powers should not be signatory to the
convention.
Art. 25. The conmianders in chief of the belligerent armies shall
have to provide for the details of execution of the foregoing articles,
as well as for unforeseen cases, in accordance with the instructions of
their respective governments, and conformably to the general principles
of this convention.
Art. 26. The signatory governments shall take the necessary steps to
APPENDIX m XXXIX
acquaint their troops, and particularly the protected personnel, with
the provisions of this convention and to make them known to the
people at large.
CHAPTER VIII
REPRESSION OF ABUSES AND INFRACTIONS
Art. 27. The signatory powers whose legislation should not now be
adequate engage to take or recommend to their legislatures such
measures as may be necessary to prevent the use, by private persons
or by societies other than those upon which this convention confers the
right thereto, of the emblem or name of the Red Cross or Geneva Cross,
particularly for commercial purposes by means of trade marks or com-
mercial labels.
The prohibition of the use of the emblem or name in question sl\all
take effect from the time set by each act of legislation and not later
than five years after this convention goes into efifect. Upon the said
going into efifect, it shall be unlawful to use a trade mark or commercial
label contrary to such proliibition.
Art. 28. In the event of their military penal laws being insufficient,
the signatory governments also engage to take, or to recommend to
their legislatures, the necessary measures to repress, in time of war,
individual acts of pillage and ill treatment of the sick and wounded of
the armies, as well as to punish, as usurpations of military insignia,
the wrongful use of the flag and brassard of the Red Cross by military
persons or private individuals not protected by the present convention.
They will communicate to each other through the Swiss Federal
Council the measures taken with a view to such repression, not later
than five years from the ratification of the present convention.
GENERAL PROVISIONS
Art. 29. The present convention shall be ratified as soon as possible.
The ratifications will be deposited at Berne.
A record of the deposit of each act of ratification shall be prepared,
of which a duly certified copy shall be sent, through diplomatic chan-
nels, to each of the contracting powers.
Art. 30. The present convention shall become operative, as to each
power, six months after the date of deposit'of its ratification.
Art. 31. The present convention, when duly ratified, shall supersede
xl APPENDIX III
the Convention of August 22, 1864, in the relations between the con-
tracting states.
The Convention of 1864 remains in force in the relations between
the parties who signed it but who should not also ratify the present
convention.
Art. 32. The present convention may, until December 31, proximo,
be signed by the powers represented at the conference which opened at
Geneva on June 11, 1906, as well as by the powers not represented at
the conference who have signed the Convention of 1864.
Such of the powers as shall not have signed the present convention
on or before December 31, 1906, wiU remain at liberty to accede to it
after that date. They shall signify their adhesion in a written notifica-
tion addressed to the Swiss Federal Council, and communicated to all
the contracting powers by the said Council.
Other powers may request to adhere in the same manner, but their
request shall only be efifective if, within the period of one year from
its notification to the Federal Council, such Council has not been ad-
vised of any opposition on the part of any of the contracting powers.
Art. 33. Each of the contracting parties shall have the right to
denounce the present convention. This denunciation shall only
become operative one year after a notification in writing shall have
been made to the Swiss Federal Council, which shall forthwith com-
municate such notification to all the other contracting parties.
This denunciation shall only become operative in respect to the
power which has given it.
In faith whereof the plenipotentiaries have signed the present con-
vention and affixed their seals thereto.
Done at Geneva, the sixth day of July, one thousand nine hundred
and six, in a single copy, which shall remain in the archives of the
Swiss Confederation and certified copies of which shall be delivered
through the diplomatic channel to the contracting parties.
[Here follow the signatures.]
APPENDIX IV
CONVENTION (I) FOR THE PACIFIC SETTLEMENT
OF INTERNATIONAL DISPUTES
Hin Majesty the German Emperor, King of Prussia; the President
of the United States of America; the President of the Ars;entine Re-
public; His Majesty the Emperor of Austria, King of Bohemia, etc.,
and Apostolic King of Hungary; His Majesty the King of the Bel-
gians; the President of the Republic of Bolivia; the President of the
Republic of the United States of Brazil; His Royal Highness the Prince
of Bulgaria; the President of the Republic of Chile; His Majesty the
Emperor of China; the President of the Republic of Colombia; the
Provisional Governor of the Republic of Cuba; His Majesty the King
of Denmark; the President of the Dominican Republic; the President
of the Republic of Ecuador; His Majesty the King of Spain; the Presi-
dent of the French Republic ; His Majesty the King of the United
Kingdom of Great Britain and Ireland and of the British Dominions
beyond the Seas, Emperor of India; His Majesty the King of the
Hellenes; the President of the Republic of Guatemala; the President
of the Republic of Haiti; His Majesty the King of Italy; His Majesty
the Emperor of Japan; His Royal Highness the Grand Duke of Lux-
emburg, Duke of Nassau; the President of the United States of Mex-
ico; His Royal Highness the Prinre of Montenegro; the President of
the Republic of Nicaragua; His Majesty the King of Norway; the
President of the Republic of Panam^; the President of the Republic
of Paraguay; Her Majesty the Queen of the Netherlands; the Presi-
dent of the Republic of Peru ; His Imperial Majesty the Shah of Per-
sia; His Majesty the King of Portugal and of the Algarves, etc.; His
Majesty the King of Roumania; His Majesty the Emperor of All the
Russias; the President of the Republic of Salvador; His Majesty the
King of Servia; His Majesty the King of Siam; His Majesty the King
of Sweden; the Swiss Federal Council; His Majesty the Emperor of the
xU
Xlii APPENDIX IV
Ottomans; the President of the Oriental Republic of Uruguay; the
President of the United States of Venezuela:
Animated by the sincere desire to work for the maintenance of the
general peace;
Resolved to promote by all the efforts in their power the friendly
settlement of international disputes;
Recognizing the solidarity which unites the members of the society
of civilized nations;
Desirous of extending the empire of law, and of strengthening the
appreciation of international justice;
Convinced that the permanent institution of a Tribunal of Arbitral
tion, accessible to all, in the midst of the independent Powers, will
contribute effectively to this result;
Having regard to the advantages attending the general and regular
organization of the procedure of arbitration ;
Sharing the opinion of the august Initiator of the International
Peace Conference that it is expedient to record in an international
Agreement the principles of equity and right on which are based the
security of States and the welfare of peoples;
Being desirous, with this object, of insuring the better working
in practice of Commissions of Inquiry and Tribunals of Arbitration,
and of facilitating recourse to arbitration in cases which allow of a
summary procedure ;
Have deemed it necessary to re^nse in certain particulars and to
complete the work of the First Peace Conference for the pacific settle-
ment of international disputes;
The High Contracting Parties have resolved to conclude a new
Convention for this purpose, and have appointed the following as
their Plenipotentiaries:
[iVames of Plenipotentiaries.]
Who, after having deposited their full powers, found in good and
due form, have agreed upon the following:
Title I. — On the Maintenance of the General Peace
Article 1. With a view to obviating, as far as possible, recourse
to force in the relations between States, the Contracting Powers agree
to use their best efforts to insure the pacific settlement of international
differences.
APPENDIX IV xliii
TiTLB II. — On Good Offices and Mediation
Am*. 2. In case of serious disagreement or dispute^ before an ap«
peal to arms, the Contracting Powers agree to have recourse, as far
as circumstances allow, to the good offices or mediation of one or more
friendly Powers.
Art. 3. Independently of this recourse, the Contracting Powers
deem it expedient and desirable that one or more Powers, strangers
to the dispute, should, on their own initiative, and as far as circum-
stances may allow, offer their good offices or mediation to the States
at variance.
Powers, strangers to the dispute, have the right to offer good offices
or mediation, even during the course of hostilities.
The exercise of this right can never be regarded by one or the other
of the parties in conflict as an unfriendly act.
Art. 4. The part of the mediator consists in reconciling the op-
posing claims and appeasing the feelings of resentment which may
have arisen between the States at variance.
Art. 5. The functions of the mediator are at an end when once
it Is declared, either by one of the parties to the dispute, or by the
mediator himself, that the means of reconciliation proposed by him
are not accepted.
Art. 6. Good offices and mediation, either at the request of the
parties at variance, or on the initiative of Powers strangers to the
dispute, have exclusively the character of advice and never having
binding force.
Art. 7. The acceptance of mediation cannot, unless there be an
agreement to the contrary, have the effect of interrupting, delaying^
or hindering mobilization or other measures of preparation for war.
If mediation occurs after the commencement of hostilities, it causes
no interruption to the military operations in progress, unless there be
an agreement to the contrary.
Art. 8. The Contracting Powers are agreed in recommending the
application, when circumstances allow, of special mediation in the
following form :
In case of a serious difference endangering the peace, the States at
variance choose respectively a Power, to whom they intrust the mis-
sion of entering into direct communication with the Power chosen on
the other side, with the object of preventing the rupture of pacific
relations.
Xliv APPENDIX IV
For the period of this mandate, the term of which, unless otherwiae
stipulated, cannot exceed thirty days, the States m conflict cease from
all direct communication on the subject of the dispute, which is re-
garded as referred exclusively to the mediating Powers, who must
use their best efforts to settle it.
In case of a definite rupture of pacific relations, these Powers are
charged with the joint task of taking advantage of any opportunity
to restore peace.
Title III. — On International Commissions of Inquiry
Art. 9. In differences of an international nature involving neither
honor nor vital interests, and arising from a difference of opinion on
points of fact, the Contracting Powers deem it expedient and desirable
that the parties, who have not been able to come to an agreement by
means of diplomacy, should as far as circumstances allow, institute an
International Commission of Inquiry, to facilitate a solution of these
differences by elucidating the facts by means of an impartial and con-
scientious investigation.
Art. 10. The International Commissions of Inquiry are consti-
tuted by special agreement between the parties in conflict.
The Inquiry Convention defines the facts to be examined; it
determines the mode and time in which the Conunission is to be
formed and the extent of the Commissioners' powers.
It also determines, if there is need, where the Commission is to sit,
and whether it may remove to another place, the language the Com-
mission shall use and the languages the use of which shall be author-
ized before it, as well as the date on which each party must deposit its
statement of facts, and, generally speaking, all the conditions upon
which the parties have agreed.
If the parties consider it necessary to appoint Assessors, the In-
quiry Convention shall determine the mode of their selection and the
extent of their powers.
Art. 11. If the Inquiry Convention has not determined where the
Commission is to sit, it will sit at The Hague.
The place of meeting, once fixed, cannot be altered by the Com-
mission except with the assent of the parties.
If the Inquiry Convention has not determined what languages are
to be employed, the question shall be decided by the Commission.
Art. 12. Unless an undertaking is made to the contrary, Com-
APPENDIX IV Xlv
missions of Inquiry shall be formed in the manner determined by
Articles 45 and 57 of the present Convention.
Art. 13. Should one of the Commissioners or one of the Assessors,
should there be any, either die, or resign, or be unable for any reason
whatever to discharge his functions, the same procedure is followed
for fiOUiing the vacancy as was followed for appointing him.
Art. 14. The parties are entitled to appoint special agents to at-
tend the Commission of Inquiry, whose duty it is to represent them and
to act as intermediaries between them and the Commission.
They are further authorized to engage counsel or advocates, ap-
pointed by themselves, to state their case and uphold their interests
before the Commission.
Art. 15. The International Bureau of the Permanent Coml of
Arbitration acts as registry for the Commissions which sit at The
Hague, and it shall place its offices and stafif at the disposal of the
Contracting Powers for the use of the Commission of Inquiry.
Art. 16. If the Commission meets elsewhere than at The Hague,
it appoints a Secretary-CJeneral, whose office serves as registry.
It is the fimction of the registry, under the control of the President,
to make the necessary arrangements for the sittings of the Commis-
sion, the preparation of the Minutes, and, while the inquiry lasts, for
the charge of the archives, which shall subsequently be transferred to
the International Bureau at The Hague.
Art. 17. In order to facilitate the constitution and working of
Commissions of Inquiry, the Contracting Powers recommend the
following rules, which shall be applicable to the inquiry procedure
in so far as the parties do not adoi)t other rules.
Art. 18. The Commission shall settle the details of the procedure
not covere'd by the special Inquiry Convention or the present Con-
vention, and shall arrange all the formalities required for dealing
with the evidence.
Art. 19. On the inquiry both sides must be heard.
At the dates fixed, each party communicates to the Commission
and to the other party the statements of facts, if any, and, in all cases,
the instnmnents, papers, and documents which it considers useful
for ascertaining the truth, as well as the list of witnesses and experts
whose evidence it wishes to be heard.
Art. 20. The Commission is entitled, with the assent of the Pow-
ers, to move temporarily to any place where it considers it may be
useful to have recourse to this means of inquiry or to send one or
xlvi APPENDIX IV
more of its members. Permission must be obtained from the State
on whose territory it is proposed to hold the inquiry.
Art. 21. Every investigation, and every examination of a local-
ity, must be made in the presence of the agents and counsel of the
parties or after they have been duly summoned.
Art. 22. The Commission is entitled to ask from either party for
such explanations and information as it considers necessary.
Art. 23. The parties undertake to supply the Commission of
Inquiry, as fully sa they may think possible, with all means and facili-
ties necessary to enable it to become completely acquainted with, and
to accurately understand, the facts in question.
They undertake to make use of the means at their disposal, under
their municipal law, to insure the appearance of the witnesses or ex-
perts who are in their territory and have been summoned before the
Commission.
If the witnesses or experts are unable to appear before the Com-
mission, the parties will arrange for their evidence to be taken before
the qualified officials of their own coimtry.
Art. 24. For all notices to be served by the Commission in the
territory of a third Contracting Power, the Commission shall apply-
direct to the Government of the said Power. The same rule applies
in the case of steps being taken on the spot to procure evidence.
The requests for this purpose are to be executed so far as the means
at the disposal of the Power applied to under its municipal law allow.
They cannot be rejected unless the Power in question considers they
are calculated to impair its sovereign sights or its safety.
The Commission will equally be always entitled to act through the
Power on whose territory it sits.
Art. 25. The witnesses and experts are summoned on the request
of the parties or by the Commission of its own motion, and, in every
case, through the Government of the State in whose territory they
are.
The T^'itnosses are heard in succession and separately, in the pres-
ence of the agents and counsel, and in the order fixed by the Commis-
sion.
Art. 26. The examination of witnesses is conducted by the Pres-
ident.
The members of the Commission may however put te each wit-
ness questions which they consider likely to throw light on and
complete his evidence, or get information on any point concerning
APPENDIX IV xlvii
thct Witness within the limits of what is necessary in order to get at
the truth.
The agent« and counsel of the parties may not interrupt the witness
when be is making his statement; nor put any direct question to him,
but they may ask the President to put such additional questions to
the witness as they think expedient.
Art. 27. The witness must give his evidence without being al-
lowed to read any written draft. He may, however, be permitted by
the President to consult notes or documents if the nature of the
facts referred to necessitates their emplo3rment.
Abt. 28. A Minute of the evidence of the witness is drawn up forth-
with and read to the witness. The latter may make such alterations
and additions as he thinks necessary, which will be recorded at the
end of his statement.
When the whole of his statement has been read to the witness, he is
required to sign it.
Abt. 29. The agents are authorized, in the course of or at the close
of the inquiry, to present in writing to the Commission and to the
other party such statements, requisitions, or summaries of the facts
as they consider useful for ascertaining the truth.
Art. 30. The Commission considers its decisions in private and
the proceedings are secret.
All questions are decided by a majority of the members of the Com-
mission.
If a member declines to vote, the fact must be recorded in the
Minutes.
Art. 31. The sittings of the Commission are not public, nor the
ftfinutes and documents connected with the inquiry published except
in virtue of a decision of the Commission taken with the consent of
the parties.
Art. 32. After the parties have presented all the explanations and
evidence, and the witnesses have all been heard, the President de-
clares the inquiry terminated, and the Commission adjourns to delib-
erate and to draw up its Report.
Art. 33. The Report is signed by all the members of the Com-
mission.
If one of the members refuses to sign, the fact is mentioned; but
the validity of the Report is not affected.
Art. 34. The Report of the Commission is read at a public sitting,
the agents and counsel of the parties being present or duly sununoned.
xlviii APPENDIX IV
A copy of the Report is given to each party.
Art. 35. The Pleport of the Commission is limited to a statement
of facts, and has in no way the character of an Award. It leaves to
the parties entire freedom as to the effect to be given to the statement.
Art. 36. Each party pays its own expenses and an equal share of
the expenses incurred by the Commission.
Tttle rV. — On International Arbitration
Chapter I. On the System of Arbitration
Art. 37. International arbitration has for its object the settle-
ment of disputes between States by judges of their own choice, and
on the basis of respect for law.
Recourse to arbitration implies an engagement to submit in good
faith to the Award.
Art. 38. In questions of a legal nature, and especiaUy in the in-
terpretation or application of International Conventions, arbitration
is recognized by the Contracting Powers as the most effective, and at
the same time the most equitable, means of settling disputes which
diplomacy has failed to settle.
Consequently, it would be desirable that, in disputes about the
above-mentioned questions, the Contracting Powers should, if the
case arose, have recourse to arbitration, in so far as circumstances
permit.
Art. 39. The Arbitration Convention is concluded for questions
already existing or for questions which may arise eventually.
It may embrace any dispute or only disputes of a certain category.
Art. 40. Independently of general or private Treaties expressly
stipulating recourse to arbitration as obligatory on the Contracting
Powers, the said Powers reserve to themselves the right of concluding
new Agreements, general or private, with a view to extending oblig-
atory arbitration to all cases which they may consider it possible to
submit to it.
Chapter II. On the Permanent Court of Arbitration
Art. 41. With the object of facilitating an immediate recourse
to arbitration for international differences, which it has not been pos-
sible to settle by diplomacy, the Contracting Powers imdertake to
maintain the permanent Court of Arbitration, established by the First
APPENDIX IV Xlix
Peace Conference accessible at all times and operating, unless other-
wise stipulated by the i-arties, in accordance with the Rules of Pro-
cedure inserted in the present Convention.
Art. 42. The Permanent Court is competent for all arbitration
cases, unless the parties agree to institute a special Tribunal.
Art. 43. The Permanent Court sits at The Hague. An Inter-
national Bureau serves as registry for the Court. It is the channel
for communications relative to the meetings of the Court; it has the
custody of the archives and conducts all the administrative business.
The Contracting Powers undertake to communicate to the Bureau
as soon as possible a certified copy of any conditions of arbitration
arrived at between them, and of any award concerning them delivered
by a special Tribunal.
They undertake Hkewise to communicate to the Bureau the laws,
regulations, and docimients eventually showing the execution of the
awards given by the Court.
Art. 44. Each Contracting Power shall select four persons at the
most, of known competency in questions of international law, of the
highest moral reputation, and disposed to accept the duties of Arbi-
trators.
The persons thus selected are inscribed, as members of the Coiui;,
in a list which shall be notified by the Bureau to all the Contracting
Powers.
Any alteration in the list of Arbitrators is brought by the Bureau
to the knowledge of the Contracting Powers.
Two or more Powers may agree on the selection in conmion of one
or more Members.
The same person may be selected by different Powers.
The Members of the Coiut are appointed for a term of six years.
Their appointments can be renewed.
In case of the death or retirement of a member of the Court, his place
shall be filled in accordance with the method of his appointment. In
this case the appointment is made for a fresh period of six years.
Art. 45. When the Contracting Powers desire to have recourse
to the Permanent Court for the settlement of a difference that has
arisen between them, the Arbitrators called upon to form the Tribunal
with jurisdiction to decide this difference, must be chosen from the
general hst of members of the Court.
Failing the direct agreement of the parties on the composition of the
Arbitration Tribimal, the following course shall be pursued:
1 APPENDIX IV
Each party appoints two Arbitrators, of whom one only can be its
national or chosen from among the persons selected by it as members
of the Permanent Court. These Arbitrators together choose an Um-
pire.
If the votes are equally divided, the choice of the Umpire is intrusted
to a third Power, selected by the parties by conunon accord.
If an agreement is not arrived at on this subject, each party selects
a dififerent Power, and the choice of the Umpire is made in concert
by the Powers thus selected.
If, within two months' time, these two Powers cannot come to an
agreement, each of them presents two candidates taken from the list
of members of the Permanent Court, exclusive of the members selected
by the parties and not being nationals of either of them. Drawing
lots determines which of the candidates thus presented shall be Um-
pire.
Art. 46. As soon as the Tribunal has been constituted, the parties
notify to the Bureau their determination to have recourse to the
Court, the text of their "Compromis," and the names of the Arbi-
trators.
The Bureau communicates without delay to each Arbitrator the
"Compromis," and the names of the other members of the Tribunal.
The Tribunal assembles on the date fixed by the parties. The
Bureau makes the necessary arrangements for the meeting.
The Members of the Tribunal, in the discharge of their duties and out
of their own country, enjoy diplomatic privileges and immunities.
Art. 47. The Bureau is authorized to place its offices and staff at
the disposal of the Contracting Powers for the use of any special Board
of Arbitration.
The jurisdiction of the Permanent Court may, within the conditions
laid down in the Regulations, be extended to disputes between oon-
Contracting Powers, or between Contracting Powers and non-Con-
tracting Powers, if the Parties are agreed on recourse to this TribunaL
Art. 48. The Contracting Powers consider it their duty, if a seri-
ous dispute threatens to break out between two or more of them, to
remind these latter that the Permanent Court is open to them.
Consequently, they declare that the fact of reminding the parties
at variance of the provisions of the present Convention, and tiie ad-
vice given to them, in the highest interests of peace, to have recourse
to the Permanent Court, can only be regarded as friendly actions.
In case of dispute between two Powers, one of them can always
APPENDIX IV li
address to the International Bureau a note containing a declaration
that it would be ready to submit the dispute to arbitration.
The Bureau must at once inform the other Power of the declaration.
Abt. 49. The Permanent Administrative Council, composed of
the Diplomatic Representatives of the Contracting Powers accredited
to The Hague and of the Netherland Minister for Foreign Affairs,
who acts as President, is charged with the direction and control of the
International Bureau.
The Council settles its Rules of Procedure and all other necessary
Regulations.
It decides all questions of administration which may arise with re-
gard to the operations of the Court.
It has entire control over the appointment, suspension or dismissal
of the officials and employ^ of the Bureau.
It fixes the payments and salaries, and controls the general expendi-
ture.
At meetings duly summoned the presence of nine members is suf-
ficient to render valid the discussions of the Council. The decisions
are taken by a majority of votes.
The Coimcil communicates to the Contracting Powers without de-
lay the Regulations adopted by it. It furnishes them with an annual
Report on the labors of the Court, the working of the administration,
and the expenses. The Report likewise contains a r^um^ of what is
important in the documents communicated to the Bureau by the
Powers in virtue of Article 43, paragraphs 3 and 4.
Abt. 50. The expenses of the Bureau shall be borne by the Con-
tracting Powers in the proportion fixed for the International Bureau
of the Universal Postal Union.
The expenses to be charged to the adhering Powers shall be reck-
oned from the date on which their adhesion comes into force.
Chapter III. On Arbitral Procedure
Abt. 51. With a view to encourage the development of arbitra-
tion, the Contracting Powers have agreed on the following Rules
which shall be applicable to arbitral procedure, unless other rules have
been agreed on by the parties.
Abt. 52. The Powers which have recourse to arbitration sign a
"Compromis," in which the subject of the dispute is clearly defined,
the time allowed for appointing Arbitrators, the form, order, and time
Hi APPENDIX IV
in which the communication referred to in Article 63 must be made.
and the amount of the sum which each party must deposit in advance
to defray the expenses.
The "Compromis" Hkewise defines, if there is occasion, the manner
of appointing Arbitrators, any special powers which may eventually
belong to the Tribunal, where it shall meet, the language it shall use,
and the languages the employment of which shall be authorized before
it, and, generally speaking, all the conditions on which the parties are
agreed.
Art. 53. The Permanent Court is competent to settle the "Com-
promis,*' if the parties are agreed to have recourse to it for the purpose.
It is similarly competent, even if the request is only made by one
of the parties, when all attempts to reach an understanding through
the diplomatic channel have failed, in the case of:
1. A dispute covered by a general Treaty of Arbitration concluded
or renewed after the present Convention has come into force, and pro-
viding for a "Compromis" in all disputes and not either explicitly or
implicitly excluding the settlement of the "Compromis" from the
competence of the Court. Recourse cannot, however, be had to the
Court if the other party declares that in its opinion the dispute does
not belong to the category of disputes which can be submitted to com-
pulsory arbitration, unless the Treaty of Arbitration confers upon the
Arbitration Tribunal the power of deciding this preliminary question.
2. A dispute arising from contract debts claimed from one Power
by another Power as due to its nationals, and for the settlement of
which the offer of arbitration has been accepted. TMs arrangement
is not applicable if acceptance is subject to the condition that the
"Compromis" should be settled in some other way.
Art. 54. In the cases contemplated in the preceding Article, the
"Compromis" shall be settled by a Commission consisting of five
members selected in the manner arranged for in Article 45, paragraphs
3 to 6.
The fifth member is President of the Commission ex oifUio.
Art. 55. The duties of Arbitrator may be conferred on one Arbi-
trator alone or on several Arbitrators selected by the parties as Uiey
please, or chosen by them from the members of the Permanent Court
of Arbitration established by the present Convention.
Failing the constitution of the Tribunal by direct agreement between
the parties, the course referred to in Article 45, paragraohs 3 to 6, is
followed.
APPENDIX IV liii
Art. 56. When a Sovereign or the Chief of a State is chosen as
Arbitrator, the arbitral procedure is settled by him.
Art. 57. The Umpire is President of the Tribunal ex officio.
When the Tribunal does not include an Umpire, it appoints its own
President.
Art. 58. When the "Compromis" is settled by a Commission, as
contemplated in Article 54, and in the absence of an agreement to the
contrary, the Commission itself shall form the Arbitration Tribunal.
Art, 59. In case of the death, retirement, or disability from any
cause of one of the Arbitrators, his place shall be filled in accordance
with the method of his appointment.
Art. 60. The Tribunal sits at The Hague, unless some other place
IS selected by the parties.
The Tribunal may only sit in the territory of a third Power with the
latter's consent.
The place of meeting once fixed cannot be altered by the Tribunal,
except with the consent of the parties.
Art. 61. If the ''Compromis" has not determined what languages
are to be used, it shall be decided by the Tribunal.
Art. 62. The parties are entitled to appoint s|)ecial agents to at-
tend the Tribunal, for the purpose of serving as intermediaries between
themselves and the Tribunal.
They are further authorized to retain, for the defense of their rights
and interests before the Tribunal, counsel or advocates appointed by
them for this purpose.
The members of the Permanent Court may not act as agents, coun-
sel, or advocates except on behalf of the Power which appointed them
members of the Court.
Art. 63. As a general rule the arbitral procedure comprises two
distinct phases: written pleadings and oral discussions.
The pleadings consist in the communication by the respective agents
to the members of the Tribunal and the opposing party, of cases, coun-
ter-cases, and, if necessary, of replies; the parties annex thereto all
papers and documents relied on in the case. This communication
shall be made either directly or through the intermediary of the Inter-
national Bureau, in the order and within the time fixed by the " Com-
promis."
The time fixed by the "Compromis" may be extended by mutual
agreement by the parties, or by the Tribunal when the latter considers
it necessary for the purpose of reaching a just decision.
liv APPENDIX IV
Discussion consists in the oral development before the Tribunal of
the arguments of the parties.
Art. 64. A duly certified copy of every document produced by one
party must be communicated to the other party.
Art. 65. Unless special circumstances arise, the Tribimal does not
meet until the pleadings are closed.
Art. 66. The discussions are under the control of the President.
They are only public if it be so decided by the Tribunal, with the
assent of the parties.
They are recorded in minutes drawn up by the Secretaries ap-
pointed by the President. These minutes are signed by the Presi-
dent and by one of the Secretaries and alone have an authentic
character.
Art. 67. After the close of the pleadings, the Tribimal has the
right to refuse discussion of all new papers or documents which one
party may desire to submit to it without the consent of the other
party.
Art. 68. The Tribimal is free to take into consideration new pa-
pers or docimients to which its attention may be drawn by the agents
or counsel of the parties.
In this case, the Tribunal has the right to require the production of
these Acts or documents, but is obliged to make them known to the
opposite party.
Art. 69. The Tribunal may, besides, require from the agents of
the parties the production of all papers, and can demand all necessary
explanations. In case of refusal, the Tribunal takes note of it.
Art. 70. The agents and the counsel of the parties are authorized
to present orally to the Tribunal all the arguments they may think
expedient in defense of their case.
Art. 71. They are entitled to raise objections and points. The
decisions of the Tribunal on those points are final, and cannot form
the subject of any subsequent discussion.
Art. 72. The members of the Tribunal are entitled to put ques-
tions to the agents and counsel of the parties, and to demand explana-
tions from them on doubtful points.
Neither the questions put nor the remarks made by members of the
Tribunal during the discussions can be regarded as an expression of
opinion by the Tribunal in general, or by its members in particular.
Art. 73. The Tribunal is authorized to declare its competence in
interpreting the "Compromis" as well afi the other acts and docu*
APPENDIX IV Iv
ments which may be invoked in the case, and in applying the princi-
ples of law.
Art. 74. The Tribunal is entitled to issue Rules of Procedure for
the conduct of the case, to decide the forms, order and time in which
each party must conclude its arguments, and to arrange all the for-
malities required for dealing with the evidence.
Art. 75. The parties undertake to supply the Tribunal, as fully as
they consider possible, with all the information required for deciding
the case.
Art. 76. For all notices which the Tribunal has to serve in the
territory of a third Contracting Power, the Tribunal shall apply direct
to the Government of that Power. The same rule applies in the case
of steps being taken to procure evidence on the spot.
The requests for this purpose are to be executed as far as the means
at the disposal of the Power applied to under its municipal law allow.
They cannot be rejected imless the Power in question considers them
calculated to impair its own sovereign rights or its safety.
The Tribimal will equally be always entitled to act through the
Power on whose territory it site.
Art. 77. When the agcnte and counsel of the parties have sub-
mitted all explanations and evidence in support of their case, the Pres-
ident pronounces the discussion closed.
Art. 78. The deliberations of the Tribunal take place in private
and the proceedings remain secret. Every decision is taken by a ma-
jority of members of the Tribunal.
Art. 79. The award is accompanied by a statement of reasons.
It contains the names of the Arbitrators; it is signed by the President
and Registrar or by the Secretary acting as Registrar.
Art. 80. The award is read out at a public meeting of the Tri-
bunal, the agente and counsel of the parties being present, or duly
summoned to attend.
Art. 81. The award, duly pronounced and notified to the agents
of the parties, puts an end to the dispute definitely and without ap-
peal.
Art. 82. Any dispute arising between the parties as to the inter-
pretation and execution of the Award shall, in the absence of an agree-
ment to the contrary, be submitted to the Tribunal which pronounced
it.
Art. 83. The parties may reserve in the "Compromis" the right
to demand the revision pf the award.
Ivi Ai*PENDIX IV
In this case, and unless there be an agreement to the contrary, the
demand must be addressed to the Tribunal which pronounced the
award. It can only be made on the ground of the discovery of some
new fact calculated to exercise a decisive influence on the award, and
which, at the time the discussion was closed, was unknown to the Tri-
bunal and to the party demanding the revision.
Proceedings for revision can only be instituted by a decision of the
Tribunal expressly recording the existence of the new fact, recognizing
in it the character despribed in the foregoing paragraph, and declaring
the demand admissible on this ground.
The "CJompromis" fixes the period within which the demand for
revision must be made.
Art. 84. The award is not binding except on the parties in dispute.
When there is a question of interpreting a Convention to which
Powers other than those concerned in the dispute are parties, they
shall inform all the Signatory Powers in good time. Each of these
Powers has the right to intervene in the case. If one or more of them
avail themselves of this right, the interpretation contained in the
award is equally binding on them.
Art. 85. Each party pays its own expenses and an equal share of
those of the Tribunal.
Chapter IV. Arbitration by Summary Procedure
Art. 86. With a view to facilitating the working of the system of
arbitration in disputes admitting of a summary procedure, the Con-
tracting Powers adopt the following rules, which shall be observed
in the absence of other arrangements and subject to the reservation
that the provisions of Chapter III apply so far as they are not incon-
sistent.
Art. 87. Each of the parties in dispute appoints an Arbitrator.
The two Arbitrators thus selected choose an Umpire. If they do not
agree on this point, each of them proposes two candidates taken from
the general list of the members of the Permanent Court exclusive of
the members appointed by either of the parties and not being nationals
of either of them ; which of the candidates thus proposed shall be the
Umpire is determined by lot.
The Umpire presides over the Tribunal, which gives its decisions by
a majority of votes.
Art. 88. In the absence of any previous agreement the Tribunal^
APPENDIX IV Mi
as soon as it is fonned, settles the time within which the two parties
must submit their respective cases to it.
Art. 89. Each party is represented before the Tribunal by an
agent, who serves as intermediary between the Tribimal and the Gov-
ernment which has appointed him.
Art. 90. The proceedings are conducted exclusively in writing.
Each party, however, is entitled to ask that witnesses and experts
should be called. The Tribunal has, for its part, the right to demand
oral explanations from the agents of the two parties, as well as from
the experts and witnesses whose appearance in Coiut it may consider
useful.
General Provisions
Art. 91. The present Convention, duly ratified, shall replace, as
between the Contracting Powers, the Convention for the Pacific Set-
tlement of International Disputes of the 29th July, 1899.
Art. 92. The present Convention shall be ratified as speedily as
possible.
The ratifications shall b^ deposited at The Hague.
The first deposit of ratifications shall be recorded in a procks-verbal
signed by the Representatives of the Powers which take part therein
and by the Netherland Minister for Foreign Affairs.
The subsequent deposits of ratifications shall be made by means
of a written notification, addressed to the Netherland Government
and accompanied by the instrument of ratification.
A duly certified copy of the procks-verbal relative to the first deposit
of ratifications, of the notifications mentioned in the preceding para-
graph, and of the instruments of ratification, shall be immediately
sent by the Netherland Government, through the diplomatic channel,
to the Powers invited to the Second Peace Conference, as well as to
those Powers which have adhered to the Convention. In the cases
contemplated in the preceding paragraph, the said Government shall
at the same time inform the Powers of the date on which it received
the notification.
Art. 93. The non-Signatory Powers which have been invited to
the Second Peace Conference may adhere to the present Convention.
The Power which desires to adhere notifies its intention in writing
to the Netherland Government, forwarding to it the act of adhesion,
which shall be deposited in the archives of the said Government.
Thi« Government shall immediately forward to all the other Powers
Iviii APPENDIX IV
invited to the Second Peace Conference a duly certified copy of the
notification as well as of the act of adhesion, mentioning the date on
which it received the notification.
Art. 94. The conditions on which the Powers which have not
been invited to the Second Peace C5onference may adhere to the pres-
ent Convention shall form the subject of a subsequent Agreement be-
tween the Contracting Powers.
Art. 95. The present Convention shall take effect, in the case of
the Powers which were parties to the first deposit of ratifications,
sixty days after the date of the procks-verbal of this deposit, and, in the
case of the Powers which ratify subsequently or which adhere, sixty
days after the notification of their ratification or of their adhesion
has been received by the Netherland Government.
Art. 96. In the event of one of the Contracting Parties wishing
to denounce the present Convention, the denunciation shall be notified
in writing to the Netherland Government, which «^shall immediately
communicate a duly certified copy of the notification to all the other
Powers informing them of the date on which it was received.
The denunciation shall only have effect in regard to the notifjong
Power, and one year after the notification has reached the Netherland
Government.
Art. 97. A register kept by the Netherland Minister for Foreign
Affairs shall give the date of the deposit of ratifications effected in
virtue of Article 92, paragraphs 3 and 4, as well as the date on which
the notifications of adhesion (Article 93, paragraph 2) or of denimcia-
tion (Article 96, paragraph 1) have been received.
Each Contracting Power is entitled to have access to this register
and to be supplied with duly certified extracts from it.
In faith whereof the Plenipotentiaries have appended their signa-
tures to the present Convention.
Done at The Hague, the 18th October, 1907, in a single copy, which
shall remain deposited in the archives of the Netherland Government,
and duly certified copies of which shall be sent, through the diplomatic
channel, to the Contracting Powers.
The said CJonvention was ratified by the Senate of the United States
of America under reservation of the following declaration:
"Nothing contained in this convention shall be so construed as to
require the United States of America to depart from its traditional
policy of not intruding upon, interfering with, or entangling itself in
APPENDIX IV lix
the political questions of policy or internal administration of any
foreign state; nor shall anything contained in the said convention be
construed to imply a relinquishment by the United States of America
of its traditional attitude toward purely American questions."
Resolved further, as a part of this act of ratification^ That the United
States approves this convention with the understanding that recourse
to the permanent court for the settlement of differences can be had
only by agreement thereto through general or special treaties of arbi-
tration heretofore or hereafter concluded between the parties in dis-
pute; and the United States now exercises the option contained in
Article 53 of said convention, to exclude the formulation of the ''Com-
promis " by the permanent court, and hereby excludes from the com-
petence of the permanent court the power to frame the " Compromis "
required by general or special treaties of arbitration concluded or
hereafter to be concluded by the United States, and further expressly
declares that the "Compromis" required by any treaty of arbitration
to which the United States may be a party shall be settled only by
agreement between the contracting parties, unless such treaty shall
expressly provide otherwise.
APPENDIX V
CONVENTION (IV) RESPECTING THE LAWS AND
CUSTOMS OF WAR ON LAND
[Names of States.*]
Considering that, while seeking means to preserve peace and pre-
vent armed conflicts between nations, it is likewise necessary to bear
in mind the case where the appeal to arms has been brought about by
events which their care was unable to avert;
Animated by the desire to seWe, even in this extreme case, the in-
terests of humanity and the ever progressive needs of civilization ;
Thinking it important, with this object, to revise the general laws
and customs of war, either with a view to defining them more precisely,
or to confining them within such limits as would mitigate their sevei^
ity as far as possible;
Have deemed it necessary to complete and explain in oertiun par-
ticulars the work of the First Peace Conference, which, following on
the Brussels Conference of 1874, and inspired by the ideas dictated
by a wise and generous forethought, adopted provisions intended to
define and govern the usages of war on land.
According to the views of the High Contracting Parties, these provi-
sions, the wording of which has been inspired by the desire to diminish
the evils of war as far as military necessities permit, are intended to
serve as a general rule of conduct for the belligerents in their relations
with each other and with the inhabitants.
It has not, however, been found possible at present to concert reg-
ulations covering all the circumstances which occur in practice.
On the other hand, it could not be intended by the High Contracting
Parties that the unforeseen cases should, in the absence of a written
undertaking, be left to the arbitrary judgment of military Conunand-
crs.
Until a more complete code of the laws of war has been issued^ the
i For names of States see Appendix IV, p. 389.
APPENDIX V bd
High Contracting Parties deem it expedient to declare that in cases
not included in the Regulations adopted by them, the inhabitants and
the belligerents remain imder the protection and the rule of the prin-
ciples of international law, as they result from the usages established
among civilused peoples, from the laws of humanity, and the dictates
of the public conscience.
They declare that it is in this sense especially that Articles 1 and 2
of the Regulations adopted must be understood.
The High Contracting Parties, desiring to conclude a fresh Con-
vention to this effect, have appointed as their Plenipotentiaries, to
wit: —
[Names of Plenipotentiaries.]
Who, after having deposited their full powers, found in good and
due form, have agreed upon the following: —
Article 1. The High Contracting Parties shall issue instructions
to their armed land forces, which shall be in conformity with the
Regulations respecting the Laws and Customs of War on Land, an-
nexed to the present Convention.
Art. 2. The provisions contained in the Regulations referred to in
Article 1, as well as in the present Convention, do not apply except
between Contracting Powers, and then only if all the belligerents are
parties to the Convention.
Art. 3. A belligerent party which violates the provisions of the
said Regulations shall, if the case demands, be liable to pay compen-
sation. It shall be responsible for all acts conmiitted by persons
forming part of its armed forces.
Art. 4. The present Convention, duly ratified, shall as between
the Contracting Powers, be substituted for the Convention of the
29th July, 1899, respecting the Laws and Customs of War on Land.
The Convention of 1899 remains in force as between the Powers
which signed it, and which do not also ratify the present Convention.
Art. 5. The present Convention shall be ratified as soon as pos-
sible.
The ratifications shall be deposited at The Hague.
The first deposit of ratifications shall be recorded in a procks-verbal
signed by the Representatives of the Powers which take part therein
and by the Netherland Minister for Foreign Affairs.
The subsequent deposits of ratifications shall be made by means
of a written notification, addressed to the Netherland Government
and accompanied by the instrument of ratification.
Ixii APPENDIX V
A duly certified copy of the procks-verbal relative to the first de-
posit of ratifications, of the notifications mentioned in the preceding
paragraph, as well as of the instruments of ratification, shall be im-
mediately sent by the Netherland Government, through the diplo-
matic channel, to the Powers invited to the Second Peace Confeienoey
as well as to the other Powers which have adhered to the Convention.
In the cases contemplated in the preceding paragraph the said Gov-
ernment shall at the same time inform them of the date on which it
received the notification.
Art. 6. Non-Signatory Powers may adhere to the present Con-
vention.
The Power which desires to adhere notifies in writing its intention
to the Netherland Government, forwarding to it the act of adhesion,
which shall be deposited in the archives of the said Government.
This Government shall at once transmit to all the other Powers
a duly certified copy of the notification as well as of the act of ad-
hesion, mentioning the date on which it received the notification.
Art. 7. The present Convention shall come into force, in the case
of the Powers which were a party to the first deposit of ratifications
sixty days after the date of the procbs-verbal of this deposit, and, in
the case of the Powers which ratify subsequently or which adhere,
sixty days aft«r the notification of their ratification or of their ad-
hesion has been received by the Netherland Government.
Art. 8. In the event of one of the Contracting Powers wishing to
denounce the present Convention, the denunciation shall be notified
in writing to the Netherland Government, which shall at once com-
municate a duly certified copy of the notification to all the other Pow-
ers, informing them of the date on which it was received.
The denunciation shall only have effect in regard to the notifying
Power, and one year after the notification has reached the Netherland
Government.
Art. 9. A register kept by the Netherland Ministry for Foreign
Affairs shall give the date of the deposit of ratifications made in virtue
of Article 5, paragraphs 3 and 4, as well as the date on which the
notifications of adhesion (Article 6, paragraph 2) or of denunciation
(Article 8, paragraph 1) were received.
Each Contracting Power is entitled to have access to this register
and to be supplied with duly certified extracts.
In faith whereof the Plenipotentiaries have appended their signa-
tures to the present Convention.
APPENDIX V Ixiii
Done at The Hague, the 18th October, 1907, in a single copy, which
shall remain deposited in the archives of the Netherland Government,
and duly certified copies of which shall be sent, through the diplomatic
channel, to the Powers which have been invited to the Second Peace
Conference.
ANNEX TO THE CONVENTION
REGULATIONS RESPECTING THE LAWS AND CUSTOMS
OF WAR ON LAND
SECTION I
Belliobrbnts
Chapter I. On the QualificcUi^ms of BelligererUs
Articu: 1. The laws, rights, and duties of war apply not only to
armies, but also to militia and volunteer corps, fulfilling the following
conditions:
1. To be commanded by a person responsible for his subordinates;
2. To have a fixed distinctive emblem recognizable at a distance ;
3. To carry arms openly; and
4. To conduct their operations in accordance with the laws and cus-
toms of war.
In countries where militia or volunteer corps constitute the army, or
form part of it, they are included imder the denomination "army."
Art. 2. The population of a territory which has not been occupied
who, on the enemy's approach, spontaneously take up arms to resist
the invading troops without having had time to organize themselves
in accordance with Article 1, shall be regarded as belligerent if they
carry arms openly and if they respect the laws and customs of war.
Art. 3. The armed forces of the belligerent parties may cx)nsist
of combatants and noncombatants. In case of capture by the enemy
both have a right to be treated as prisoners of war.
Chapter II. Prisoners of War
Art. 4. Prisoners of war are in the power of the hostile Govern-
ment, but not in that of the individuals or corps who captured them.
They must be humanely treated.
All their personal belongings, except arms, horses, and military
papers, remain their property.
bdv APPENDIX V
Art. 5. Prisoners of war may be interned in a town, fortress,
cainp, or any other locality, and bound not to go beyond certain fixed
limits; but they cannot be confined except as an indispensable meas-
ure of safety, and only while the circumstances which necessitate the
measure continue to exist.
Art. 6. The State may utilize the labor of prisoners of war ac-
cording to their rank and aptitude, officers excepted. Their tasks shall
not be excessive, and shall have nothing to do with the military
operations.
Prisoners may be authorized to work for the public service, for
private persons, or on their own account.
Work done for the State shall be paid for according to the rates in
force for soldiers of the national army employed on similar tasks, or,
if there are none in force, at a rate according to the work executed.
When the work is for other branches of the public service or for
private persons, the conditions shall be settled in agreement with the
military authorities.
The wages of the prisoners shall go towards improving their position,
and the balance shall be paid them at the time of their release, after
deducting the cost of their maintenance.
Art. 7. The Government into whose hands prisoners of war have
fallen is bound to maintain them.
Failing a special agreement between the belligerents, prisoners of war
shall be treated as regards food, quarters, and clothing, on the same
footing as the troops of the Government which has captured them.
Art. 8. Prisoners of war shall be subject to the laws, regulations,
and orders in force in the army of the State into whose hands they
have fallen.
Any act of insubordination warrants the adoption, as regards them,
of such measures of severity as may be necessary.
Escaped prisoners, recaptured before they have succeeded in re-
joining their army or before quitting the territory occupied by the
army that captured them, are liable to disciplinary pimishment.
Prisoners, who after succeeding in escaping are again taken prison-
ers, are not liable to any punishment for the previous flight.
Art. 9. Every prisoner of war, if questioned, is bound to declare
his true name and rank, and if he disregards this rule, he is liable to a
curtailment of the advantages accorded to the prisoners of war of his
class.
Art. 10. Prisoners of war may be set at liberty on parole if the
APPENDIX V Ixv
laws of their country authorize it, and, in such a case, they are boimd,
on their personal honor, scrupulously to fulfill, both as regards their
own Government and the Government by which they were made
prisoners, the engagements they have contracted.
In such cases, their own Government shall not require of nor accept
from them any service incompatible with the parole given.
Art. 11. A prisoner of war cannot be forced to accept his liberty
on parole; similarly the hostile Government is not obliged to assent
to the prisoner's request to be set at liberty on parole.
Art. 12. Any prisoner of war, who is liberated on parole and re-
captured, bearing arms against the Government to whom he had
pledged his honor, or against the allies of that Government, forfeits
his right to be treated as a prisoner of war, and can be brought before
the Courts.
Art. 13. Individuals who follow an army without directly be-
longing to it, such as newspaper correspondents and reporters, sutlers,
contractors, who fall into the enemy's hands, and whom the latter think
fit to detain, have a right to be treated as prisoners of war, provided
they can produce a certificate from the military authorities of the
army they were accompanying.
Art. 14. A bureau for information relative to prisoners of war
is instituted, on the commencement of hostilities, in each of the bel-
ligerent States, and when necessary, in the neutral countries on whose
territory belligerents have been received. This bureau is intended
to answer all inquiries about prisoners of war, and is furnished by the
various services concerned with all the information respecting intern-
ments and transfers, releases on parole, exchanges, escapes, admissions
into hospital, deaths, as well as other information necessary to enable
it to make out and keep up to date an individual return for each
prisoner of war. The bureau must state in this return the regimental
number, name and surname, age, place of origin, rank, imit, wounds,
date and place of capture, of internment, the wounds, and the death,
as well as any observations of a special character. The individual re-
turn shall be sent to the Government of the other belligerent after the
conclusion of peace.
It is also the duty of the information bureau to receive and collect
aU objects of personal use, valuables, letters, etc., found on the battle-
fields or left by prisoners who have been released on parole, or ex-
changed, or who have escaped or died in hospitals or ambulances,
and to transmit them to those interested.
Ixvi APPENDIX V
Art. 15. Relief Societies for prisoners of war, which are properly
constituted in accordance with the law of the country with the object
of serving as the intermediary for charity, shall receive from the bel-
ligerents for themselves and their duly accredited agents every facil-
ity, within the bounds of military requirements and administrative
regulations for the effective accomplishment of their humane task.
Delegates of these Societies may be admitted to the places of intern-
ment for the distribution of relief, as also to the halting places of re-
patriated prisoners, if furnished with a p>ersonal permit by the military
authorities, and on giving an engagement in writing to comply with
all regulations for order and poUce which they may prescribe.
Art. 16. The information bureau shall have the privilege of free
postage. Letters, money orders, and valuables, as well as postal
parcels destined for the prisoners of war or dispatched by them, shall
be free of all postal duties both in the countries of origin and destinar-
tion, as well as in those they pass through.
Gifts and relief in kind for prisoners of war shall be admitted free
of all duties of entry and others, as well as of pa3rments for carriage by
the State railways.
Art. 17. Officers taken prisoners shall receive the same rate of
pay as officers of corresponding rank in the country where they are
detained, the amount to be ultimately refunded by their own GoverxH
ment.
Art. 18. Prisoners of war shall enjoy complete liberty in the exer-
cise of their religion, including attendance at their own church services,
provided only they comply with the regulations for order and police
issued by the military, authorities.
Art. 19. The wills of prisoners of war are received or drawn up on
the same conditions as for soldiers of the national army.
The same rules shall be observed regarding death certificates, as
well as for the burial of prisoners of war, due regard being paid to their
grade and rank.
Art. 20. After the conclusion of peace, the repatriation of pris-
oners of war shall take place as speedily as possible.
Chapter III. The Sick and Wounded
Art. 21. The obligations of belligerents with regard to the sick
and woimded are governed by the Geneva Convention.
APPENDIX V Ixvii
SECTION II
Hostilities
Chapter I. On Means of injuring the Enemy, Sieges and Bombard-
ments
Art. 22. The right of belligerents to adopt means of injuring the
enemy is not unlimited.
Art. 23. Besides the prohibitions provided by special Conven-
tions, it is especially prohibited: —
(a) To employ poison or poisoned arms;
(&) To kill or wound treacherously individuab belonging to the
hostile nation or army;
(c) To kill or wound an enemy who, having laid down arms, or
having no longer means of defense, has surrendered at discretion;
(d) To declare that no quarter will be given;
(e) To employ arms, projectiles, or material of a nature to cause
superfluous injury;
(/) To make improper use of a flag of truce, the national flag, or
military ensigns and the enemy's uniform, as well as the distinctive
badges of the Geneva Convention;
(g) To destroy or seize the enemy's property, unless such destruc-
tion or seizure be imperatively demanded by the necessities of war;
(A) To declare abolished, suspended, or inadmissible in a court of
law the rights and actions of the nationals of the hostile party.
A belligerent is likewise forbidden to compel the nationals of the
hostile party to take part in the operations of war directed against
their own country, even if they were in the belligerent's service before
the commencement of war.
Art. 24. Ruses of war and the employment of methods necessary
to obtain information about the enemy and the country, are consid-
ered allowable.
Art. 25. The attack or bombardment, by whatever means, of
towns, villages, habitations or buildings which are not defended, is
prohibited.
Art. 26. The Commander of an attacking force, before com-
mencing a bombardment, except in the case of an assault, should do
all he can to warn the authorities.
Art. 27. In sieges and bombardments all necessary steps should
Ixviii APPENDIX V
be taken to spare as far as possible edifices devoted to religion, art|
science, and charityi historic monuments, hospitals, and places when
the sick and wounded are collected, provided they are not used at thf
same time for military purposes.
The besieged should indicate these buildings or places by some par
ticular and visible signs, which should previously be notified to th4
assailants.
Art. 28. The pillage of a town or place, even when taken by a&
sault, is prohibited.
Chapter II. Spies
Art. 29. An individual can only be considered a spy if, acting
clandestinely, or on false pretenses, he obtains, or seeks to obtain in^
formation in the zone of operations of a belligerent, with the intentioD
of communicating it to the hostile party.
Thus, soldiers not in disguise who have penetrated into the sond
of operations of a hostile army to obtain information are not consid^
ered spies. Similarly, the following are not considered spies: soldiers
or civilians, carrying out their mission openly, charged with the de^
livery of dispatches destined either for their own army or for that of
the enemy. To this class belong likewise individuals sent in balloons
to deliver dispatches, and generally to maintain communication be^
tween the various parts of an army or a territory.
Art. 30. A spy taken in the act cannot be punished without
previous trial.
Art. 31. A spy who, after rejoining the army to which he belongs,
is subsequently captured by the enemy, b treated as a prisoner of
war and incurs no responsibility for his previous acts of espionage.
Chapter III. Flags of Truce
Art. 32. An individual is considered as bearing a flag of truoe
who is authorized by one of the belligerents to enter into communica-
tion with the other, and who carries a white flag. He has a right to
inviolability, as well as the trumpeter, bugler, or drummer, the flag-
bearer and the interpreter who may accompany him.
Art. 33. The Chief to whom a flag of truce is sent is not obliged
to receive it in all circumstances.
He can take all steps necessary to prevent the envoy taking advan-
tage of his mission to obtain information.
APPENDIX V Ixix
In caae of abuser he has the right to detain the envoy temporarily.
Abt. 34. The bearer of a flag of tnioe loses his rights of inviolability
if it is proved beyond doubt that he has taken advantage of his privi-
leged position to provoke or commit an act of treachery.
Chapter IV. Capitulations
Art. 35. Capitulations agreed on between the Contracting Par-
ties must be in accordance with the rules of military honor.
When once settled^ they must be scrupulously observed by both
the parties.
Chapter Y. Armi^ices
Art. 36. An armistice suspends military operations by mutual
agreement between the belligerent parties. If its duration is not fixed,
the belligerent parties can resmne operations at any time, provided
always the enemy is warned within the time agreed upon, in accord-
ance with the terms of the armistice.
Art. 37. An armistice may be general or local. The first sus-
pends all military operations of the belligerent States; the second,
only those between certain fractions of the belligerent armies and in
a fixed radius.
Art. 38. An armistice must be notified officially, and in good
time, to the competent authorities and the troops. Hostilities are
suspended inmiediately after the notification, or at a fixed date.
Art. 39. It is for the Contracting Parties to settle, in the terms
of the armistice, what communications may be held, on the theater
of war, with the population and with each other.
Art. 40. Any serious violation of the armistice by one of the par-
ties gives the other party the right to denounce it, and even, in case
of urgency, to reconunence hostilities at once.
Art. 41. A violation of the terms of the armistice by individuals
acting on their own initiative, only confers the right of demanding
the punishment of the offenders, and, if necessary, indenmity for the
losses sustained.
SECTION m
MlLFTART AUTHORnr OVER HoSTILB TeRRITORT
Art. 42. Territory is considered occupied when it is actually
placed under the authority of the hostile army.
Ixx APPENDIX V
The occupation applies only to the territoiy where such authority
is established, and in a position to assert itself.
Art. 43. The authority of the legitimate power having actually
passed into the hands of the occupant, the latter shall take all steps
in his power to reestablish and insure, as far as possible, public order
and safety, while respecting, unless absolutely prevented, the laws in
force in the country.
Art. 44. Any compulsion of the population of occupied territory
to furnish information about the army of the other belligerent or
about its means of defense is prohibited.
Art. 45. Any pressure on the population of occupied territory to
take the oath to the hostile Power is prohibited.
Art. 46. Family honor and rights, individual lives and private
property, as well as religious convictions and practice, must be re-
spected.
Private property cannot be confiscated.
Art. 47. Pillage is formally prohibited.
Art. 48. If, in the territory occupied, the occupant collects the
taxes, dues, and tolls imposed for the benefit of the State, he shall
do it, as far as possible, in accordance with the rules in existence
and the assessment in force, and will in consequence be bound to
defray the expenses of the administration of the occupied territory
on the same scale as that by which the legitimate Government was
bound.
Art. 49. If, besides the taxes mentioned in the preceding Article,
the occupant levies other money taxes in the occupied territory, this
can only be for military necessities or the administration of such terri-
tory.
Art. 50. No general penalty, pecuniary or otherwise, can be in-
flicted on the population on account of the acts of individuals for
which it cannot be regarded as collectively responsible.
Art. 51. No contribution shall be collected except under a written
order and on the responsibility of a Commander-in-chief.
This collection shall only take place, as far as possible, in accordance
with the rules in existence and the assessment of taxes in force.
For every payment a receipt shall be given to the payer.
Art. 52. Neither requisition in kind nor services can be demanded
from communes or inhabitants except for the necessities of the army
of occupation. They must be in proportion to the resources of the
country, and of such a nature as not to involve the population in the
APPENDIX V Ixxi
obHgation of taking part in military operations against their own
country.
These requisitions and services shall only be demanded on the
authority of the Conunander in the locality occupied.
The requisitions in kind shall, as far as possible, be paid for in ready
money ; if not, a receipt shall be given and the payment of the amount
due shall be made as soon as possible.
Art. 53. An army of occupation can only take possession of the
cash, funds, and realizable securities belonging strictly to the State,
depots of arms, means of transport, stores and supplies, and, generally,
all movable property of the State which may be used for military
operations.
All appliances, whether on land, at sea, or in the air, adapted for the
transmission of news, or for the transport of persons or things, apart
from cases governed by maritime law, depots of arms and, generally,
all kinds of war material may be seized, even though belonging to
private persons, but they must be restored at the conclusion of peace,
and indemnities paid for them.
Abt. 54. Submarine cables connecting an occupied territory with
a neutral territory shall not be seized or destroyed except in the case
of absolute necessity. They must likewise be restored and compensa-
tion fixed when peace is made.
Art. 55. The occupying State shall be regarded only as adminis-
trator and usufructuary of the public buildings, real estate, forests,
and agricultural works belonging to the hostile State, and situated in
the occupied country. It must protect the capital of these properties,
and administer it according to the rules of usufruct.
Art. 56. The property of the communes, that of religious, char-
itable, and educational institutions, and those of arts and science,
even when State property, shall be treated as private property.
All seizure of, and destruction, or intentional damage done to such
institutions, to historical monuments, works of art or science, is pro-
hibited, and should be made the subject of proceedings.
APPENDIX VI
CONVENTION (V) RESPECTING THE RIGHTS AND
DUTIES OF NEUTRAL POWERS AND PERSONS
IN CASE OF WAR ON LAND
[Names of States.^]
With a view to laying down more clearly the rights and duties of
neutral Powers in case of war on land and regulating the position of
the belligerents who have taken refuge in neutral territory;
Being likewise desirous of defining the meaning of the term "neu-
tral/' pending the possibility of settling, in its entirety, the position
of neutral individuals in their relations with the belligerents;
Have resolved to conclude a Convention to this effect, and have, in
consequence, appointed the following as their Plenipotentiaries:
[Names of Plenipotentiaries.]
Who, after having deposited their full powers, found in good and
due form, have agreed upon the following provisions:
Chapter I. The Rights and Duties of Neutral Powers
Article 1. The territory of neutral Powers is inviolable.
Art. 2. Belligerents are forbidden to move troops or convoys of
either munitions of war or supplies across the territory of a neutral
Power.
Art. 3. Belligerents are likewise forbidden to:
(a) Erect on the territory of a neutral Power a wireless telegraphy
station or other apparatus for the purpose of communicating with
belligerent forces on land or sea.
(6) Use any installation of this kind establbhed by them before
the war on the territory of a neutral Power for purely military pur-
poses, and which has not been opened for the service of public messages.
^For names of States see Appendix IV, p. 389.
Ixxii
APPENDIX VI Ixxiii
Abt. 4. Corps of combatants cannot be formed nor recruiting
agencies opened on the territory of a neutral Power to assist the
belligerents.
Abt. 5. A neutral Power must not allow any of the acts referred
to in Articles 2 to 4 to occiur on its territory.
It is not called upon to punish acts in violation of its neutrality
unless the said acts have been committed on its own territory.
Art. 6. The responsibility of a neutral Power is not engaged by the
fact of persons crossing the frontier separately to offer their services
to one of the belligerents.
Abt. 7. A neutral Power is not called upon to prevent the export
or transport, on behalf of one or other of the belligerents, of arms,
munitions of war, or, in general, of an3rthing which can be of use to
an army or a fleet.
Art. 8. A neutral Power is not called upon to forbid or restrict the
use on behalf of the belligerents of telegraph or telephone cables or
of wireless telegraphy apparatus belonging to it or to companies or
private individuals.
Art. 9. Every measure of restriction or prohibition taken by a
neutral Power in regard to the matters referred to in Articles 7 and 8
must be impartially applied by it to both belligerents.
A neutral Power must see to the same obligation being observed
by companies or private individuals owning telegraph or telephone
cables or wireless telegraphy apparatus.
Art. 10. The fact of a neutral Power resisting, even by force,
attempts to violate its neutrality cannot be regarded as a hostile act.
Chapter II. Internment of Belligerents and Care of Wounded in
Neutral Territory
Art. 11. A neutral Power which receives on its territory troops
belonging to the belligerent armies shall intern them, as far as possible,
at a distance from the theater of war.
It may keep them in camps and even confine them in fortresses or in
places set apart for this purpose.
It shall decide whether officers may be left at liberty on giving
their parole not to leave the neutral territory without permission.
Art. 12. In the absence of a special Convention to the contrary,
the neutral Power shall supply the interned with the food, clothing,
and relief required by humanity.
Ixxiv APPENDIX VI
At the conclusion of peace the expenses caused by the internment
shall be made good.
Art. 13. A neutral Power which receives escaped prisoners of
war shall leave them at liberty. If it allows them to remain in its
territory it may assign them a place of residence.
The same rule applies to prisoners of war brought by troops taking
refuge in the territory of a neutral Power.
Art. 14. A neutral Power may authorize the passage into its ter-
ritory of the sick and wounded belonging to the belligerent armies, on
condition that the trains bringing them shall carry neither personnel
nor material of war. In such a case, the neutral Power is bound to take
whatever measures of safety and control are necessary for the purpose.
The sick or wounded brought imder these conditions into neutral
territory by one of the belligerents, and belonging to the hostile party,
must be guarded by the neutral Power so as to insure their not taking
part again in the military operations. The same duty shall devolve
on the neutral State with regard to wounded or sick of the other army
who may be committed to its care.
Art. 15. The Geneva Convention applies to sick and wounded
interned in neutral territory.
Chapter III. Neutral Persona
Art. 16. The nationals of a State which is not taking part in the
war are considered as neutrals.
Art. 17. A neutral cannot avail himself of his neutrality:
(a) If he commits hostile acts against a belligerent ;
(b) If he commits acts in favor of a belligerent, particularly if he
voluntarily enlists in the ranks of the armed force of one of the parties.
In such a case, the neutral shall not be more severely treated by
the belligerent as against whom he has abandoned his neutrality
than a national of the other belligerent State could be for the same
act.
Art. 18. The following acts shall not be considered as committed
in favor of one belligerent in the sense of Article 17, letter (6):
(a) The furnishing of supplies or loans to one of the belligerents,
provided that the person who furnishes the supplies or who makes
the loans lives neither in the territory of the other party nor in the
territory occupied by him, and that the supplies do not come from
these territories;
APPENDIX VI IXXV
(h) The rendering of services in matters of police or civil adminiA-
tration.
Chapter IV. Railway Material
Abt. 19. Railway material coming from the territory of neutral
Powers, whether it be the property of the said Powers or of companies
or private persons, and recognizable as such, shall not be requisitioned
or utilized by a belligerent except where and to the extent that it is
absolutely necessary. It shall be sent back as soon as possible to the
country of origin.
A neutral Power may likewise, in case of necessity, retain and utilize
to an equal extent material coming from the territory of the belligerent
Power.
Compensation shall be paid by one party or the other in proportion
to the nuiterial used, and to the period of usage.
Chapter V. Final Provisions
Art. 20. The provisions of the present Convention do not apply
except between Contracting Powers, and then only if all the belliger-
ents are parties to the Convention.
[Articles providing for ratification follow.]
APPENDIX VII
CONVENTION (VI) RELATIVE TO THE STATUS OF
ENEMY MERCHANT-SHIPS AT THE OUTBREAK
OF HOSTILITIES
[Names of States.^]
Anxious to insure the security of international commerce against
the surprises of war, and wishing, in accordance with modem prac-
tice, to protect as far as possible operations undertaken in good faith
and in process of being carried out before the outbreak of hostilities,
have resolved to conclude a Convention to this effect, and have ap-
pointed the following persons as their Plenipotentiaries:
[Names of Plenipotentiaries.]
Who, after having deposited their full powers, found in good and
due form, have agreed upon the following provisions:
Article 1. When a merchant-ship belonging to one of the bellig-
erent Powers is at the conmiencement of hostilities in an enemy port,
it is desirable that it should be allowed to depart freely, either
immediately, or after a reasonable number of days of grace, and to
proceed, after being furnished with a pass, direct to its port of des-
tination or any other port indicated.
The same rule should apply in the case of a ship which has left its
last port of departure before the commencement of the war and en-
tered a port belonging to the enemy while still ignorant that hostilities
had broken out.
Art. 2. A merchant-ship unable, owing to circumstances of force
majeure^ to leave the enemy port within the period contemplated in
the above Article, or which was not allowed to leave, cannot be con-
fiscated.
The belligerent may only detain it, without pajrment of compensa-
tion, but subject to the obligation of restoring it after the war, or
requisition it on payment of compensation.
^For names of States see Appendix IV, p. xlL
Ixxvi
APPENDIX vn Ixxvii
Art. 3. E^emy merchant-ships which left their last port of de-
parture before the commencement of the war, and are encoimtered on
the high seas while still ignorant of the outbreak of hostilities cannot
be confiscated. They are only liable to detention on the understand-
ing that they shall be restored after the war without compensation^
or to be requisitioned, or even destroyed, on payment of compensation,
but in such case provision must be made for the safety of the persons
on board as well as the security of the ship's papers.
After touching at a port in their own country or at a neutral port,
these ships are subject to the laws and customs of maritime war.
Art. 4. Enemy cargo on board the vessels referred to in Articles
1 and 2 is likewise liable to be detained and restored after the termina-
tion of the war without payment of compensation or to be requisi-
tioned on payment of compensation, with or without the ship.
The same rule applies in the case of cargo on board the vessels
referred to in Article 3.
Art. 5. The present Convention does not affect merchant-ships
whose build shows that they are intended for conversion into war-
ships.
Art. 6. The provisions of the present Convention do not apply
except between Contracting Powers, and then only if all the belliger-
ents are parties to the Convention.
[Articles providing for ratification follow.]
APPENDIX VIII
CONVENTION (X) FOR THE ADAPTATION TO NAVAL
WAR OF THE PRINCIPLES OF THE GENEVA
CONVENTION
[Names of States.*]
Animated alike by the desire to diminish, as far as depends on them,
the inevitable evils of war;
And wishing with this object to adapt to maritime warfare the
principles of the Geneva Convention of the 6th July, 1906;
Have resolved to conclude a Clonvention for the purpose of revising
the Convention of the 29th July, 1899, relative to this question, and
have appointed the following as their Plenipotentiaries:
[Names of Plenipotentiaries.]
Who, after having deposited their full powers, found in good and
due form, have agreed upon the following provisions :
AnncLB 1. Military hospital-ships, that is to say, ships constructed
or assigned by States specially and solely with a view to assisting
the wounded, sick, and shipwrecked, the names of which have been
conmiunicated to the belligerent Powers at the commencement or
during the course of hostilities, and in any case before they are em-
ployed, shall be respected, and cannot be captured while hostilities
last.
These ships, moreover, are not on the same footing as war-ships as
regards their stay in a neutral port.
Art. 2. Hospital-ships, equipped wholly or in part at the expense
of private individuals or officially recognized relief societies, shall be
likewise respected and exempt from capture, if the belligerent Power
to whom they belong has given them an official commission and has
notified their names to the hostile Power at the commencement of or
during hostilities, and in any case before they are employed.
^ For names of States see Appendix IV, p. xli,
Iwviii
APPENDIX Vra
These ships must be provided with a certificate from the competent
authorities declaring that the vessels have. been under their control
while fitting out and on final departure.
Abt. 3. Hospital-shipS; equipped wholly or in part at the expense
of private individuals or officially recognized societies of neutral coun-
tries, shall be respected and exempt from capture, on condition that
they are placed under the control of one of the belligerents, with the
previous consent of their own Government and with the authorization
of the belligerent himself, and that the latter has notified their name
to his adversary at the commencement of or during hostilities, and in
any case, before they are employed.
Abt. 4. The ships mentioned in Articles 1, 2, and 3 shall afford
relief and assistance to the wounded, sick, and shipwrecked of the
belligerents without distinction of nationality.
The Governments undertake not to use these ships for any military
purpose.
These vessels must in no wise hamper the movements of the com-
batants.
During and after an engagement they will act at their own risk and
peril.
The belligerents shall have the right to control and visit them; they
can refuse their help, order them off, make them take a certain course,
and put a Commissioner on board; they can even detain them, if im-
portant circumstances require it.
As far as possible, the belligerents shall enter in the log of the hos-
pital-ships the orders which they give them.
Art. 5. Mihtary hospital-ships shall be distinguished by being
painted white outside with a horizontal band of green about a metre
and a half in breadth.
The ships mentioned in Articles 2 and 3 shall be distinguished by
being painted white outside with a horizontal band of red about e
metre and a half in breadth.
The boats of the ships above mentioned, as also small craft which
may be used for hospital work, shall be distinguished by similar
painting.
All hospital-ships shall make themselves known by hoisting, with
their national flag, the white flag with a red cross provided by the
Geneva Convention, and further, if they belong to a neutral State, by
flying at the mainmast the national flag of the belligerent under whose
control they are placed.
IXXX APPENDIX Vin
Hospital-ships which, in the terms of Article 4, are detained by the
enemy, must haul down the national flag of the belligerent to whom
they belong.
The ships and boats above mentioned which wish to insure by
night the freedom from interference to which they are entitled, must,
subject to the assent of the belligerent they are accompan3ring, take
the necessary measures to render their special painting sufliciently
plain.
Art. 6. The distinguishing signs referred to in Article 5 can only
be used, whether in time of peace or war, for protecting or indicating
the ships therein mentioned.
Art. 7. In the case of a fight on board a war-«hip, the sick-wards
shall be respected and spared as far as possible.
The said sick-wards and the maUrid belonging to them remain sub-
ject to the laws of war; they cannot, however, be used for any puipose
other than that for which they were originally intended, so long as
they are required for the sick and wounded.
The commander, however, into whose power they have fallen may
apply them to other purposes, if the military situation requires it,
after seeing that the sick and wounded on board are properly provided
for.
Art. 8. Hospital-ships and sick-wards of vessels are no longer en-
titled to protection if they are employed for the purpose of injuring
the enemy.
The fact of the staff of the said ships and sick-wards being armed
for maintaining order and for defending the sick and wounded, and
the presence of wireless telegraphy apparatus on board, is not a suf-
ficient reason for withdrawing protection.
Art. 9. Belligerents may appeal to the charity of the commanders
of neutral merchant-ships, yachts, or boats to take on board and tend
the sick and wounded.
Vessels responding to this appeal, and also vessels which have of
their own accord rescued sick, wounded, or shipwrecked men, shall
enjoy special protection and certain immunities. In no case can
they be captured for having such persons on board, but, subject
to special promises that have been made to them, they remain
liable to capture for any violations of neutrality they may have com-
mitted.
Art. 10. The religious, medical, and hospital staff of any cap-
tured ship is inviolable, and its members cannot be made prisoners
APPENDIX vin Ixxxi
of war. On leaving the ship they take away with them the objects
and surgical instruments which are their own private property.
This staff shall continue to discharge its duties while necessary,
and can afterwards leave, when the Commander-in-chief considers it
possible.
The belligerents must guarantee to the said staff, when it has fallen
into their hands, the same allowances and pay which are given to the
staff of corresponding rank in their own navy.
Art. 11. Sailors and soldiers on board, when sick or wounded, as
well as other persons officially attached to fleets or armies, whatever
their nationality, shall be respected and tended by the captors.
Art. 12. Any war-ship belonging to a belligerent may demand
that sick,- wounded, or shipwrecked men onboard military hospital-
ships, hospital-ships belonging to relief societies or to private individ-
uals, merchant-ships, yachts, or boats, whatever the nationality of
these vessels, should be handed over.
Art. 13. If sick, wounded, or shipwrecked persons are taken on
board a neutral war-ship, every possible precaution must be taken
that they do not again take part in the operations of the war.
Art. 14. The shipwrecked, wounded, or sick of one of the bellig-
erents who fall into the power of the other belligerent are prisoners of
war. The captor must decide, according to circumstances, whether
to keep them, send them to a port of his own country, to a neutral
port, or even to an enemy port. In tlus last case, prisoners thus re-
patriated cannot serve again while the war lasts.
Art. 15. The shipwrecked, sick, or wounded, who are landed at a
neutral port with the consent of the local authorities, must, unless an
arrangement is made to the contrary between the neutral State and
the beUigerent States, be guarded by the neutral State so as to pre-
vent them again taking part in the operations of the war.
The expenses of tending them in hospital and interning them shall
be borne by the State to which the shipwrecked, sick, or wounded
persons belong.
Art. 16. After every engagement, the two belligerents, so far as
military interests permit, shall take steps to look for the shipwrecked,
sick, and wounded, and to protect them, as well as the dead, against
pillage and ill treatment.
They shall see that the burial, whether by land or sea, or cremation
of the dead shall be preceded by a careful examination of the corpses.
Art. 17. Each belligerent shall send, as early as possible, to the
.Ixxxii APPENDIX vm
authorities of their country, navy, or army the military marks or doc-
imients of identity found on the dead and the description of the sick
and wounded picked up by him.
The belligerents shall keep each other reciprocally informed as to
internments and transfers as well as to the admissions into hospital and
deaths which have occurred among the sick and wounded in their
hands. They shall collect all the objects of personal use, valuables,
letters, etc., which are found in the captured ships, or which have been
left by the sick or wounded who died in hospital, in order to have
them forwarded to the persons concerned by the authorities of their
own country.
Art. 18. The provisions of the present Convention do not apply
except between Contracting Powers, and then only if all the belliger-
ents are parties to the Convention.
Art. 19. The Commanders-in-chief of the belligerent fleets shall
provide for the execution of the details of the above Articles, as also
for eases not covered thereby, in accordance with the instructions of
their respective Governments and in conformity with the general
principles of the present Convention.
Art. 20. The Signatory Powers shall take the necessary measures
for bringing the provisions of the present Convention to the knowl-
edge of their naval forces, and especially of the members entitled
thereunder to immunity, and for making them known to the public.
Art. 21. The Signatory Powers likewise undertake to enact or to
propose to their Legislatures, if their criminal laws are inadequate,
the measures necessary for checking in time of war individual acts of
pillage and ill treatment in respect to the sick and wounded in the
fleet, as well as for punishing, as an unjustifiable adoption of naval or
military marks, the imauthorized use of the distinctive marks men-
tioned in Article 5 by vessels not protected by the present Convention.
They will communicate to each other, through the Netherland Gov-
ernment, the enactments for preventing such acts at the latest within
five years of the ratification of the present Convention.
Art. 22. In the case of operations of war between the land and
sea forces of belligerents, the provisions of the present Convention do
not apply except between the forces actually on board ship,
[Articles providing for ratification follow.]
APPENDIX IX
CONVENTION (XI) RELATING TO THE EXERCISE OF
THE RIGHT OF CAPTURE IN NAVAL WAR
[Names of States.']
Recognizing the necessity of more effectively insuring than hith-
erto the equitable application of law to the maritime international
relations in time of war;
Ck)nsidering that, for this purpose, it is expedient, in giving up or,
if necessary, in harmonizing for the common interest certain conflict-
ing practices of long standing, to commence codifying in .regulations
of general application the guarantees due to peaceful commerce and
legitimate business, as well as the conduct of hostilities by sea; that
it is expedient to lay down in written mutual engagements the prin-
ciples which have hitherto remained in the uncertain domain of con-
troversy or have been left to the discretion of Governments;
That, from henceforth, a certain number of rules may be made,
without affecting the common law now in force with regard to the
matters which that law has left unsettled ;
Have appointed the following as their Plenipotentiaries:
[Names of Plenipotentiaries.]
Who, after having deposited their full powers, found in good and
due form, have agreed upon the following provisions:
Chapter I. Postal Correspondence
Articlb 1. The postal correspondence of neutrals or belligerents,
whatever its official or private character may be, found on the high
seas on board a neutral or enemy ship, is inviolable. If the ship is
detained, the correspondence is forwarded by the captor with the
least possible delay.
^ For names of States see Appendix I V, p. xli.
Ixxxiii
Ixxxiv APPENDIX IX
The provisions of the preceding paragraph do not apply, in case of
violation of blockade, to correspondence destined for or proceeding
from a blockaded port.
Art. 2. The inviolability of postal correspondence does not ex-
empt a neutral mail-ship from the laws and customs of maritime war
as to neutral merchant-ships in general. The ship, however, may not
be searched except when absolutely necessary, and then only with as
much consideration and expedition as possible.
Chapter II. The Exemption from Capture of Certain Vessels
Art. 3. Vessels used exclusively for fishing along the coast or
small boats employed in local trade are exempt from capture, as well
as their appliances, rigging, tackle, and cargo.
They cease to be exempt as soon as they take any part whatever in
hostilities.
The Contracting Powers agree not to take advantage of the harmless
character of the said vessels in order to use them for military pur-
poses while preserving their peaceful appearance.
Art. 4. Vessels charged with religious, scientific, or philanthropic
missions are likewise exempt from capture.
Chapter III. Regulations Regarding the Crews of Enemy Merchant'-
Ships Captured by a Bdligerent
Art. 5. When an enemy merchant-ship is captured by a belliger-
ent, such of its crew as are nationals of a neutral State are not made
prisoners of war.
The same rule applies in the case of the captain and officers likewise
nationals of a neutral State, if they promise formally in writing not
to serve on an enemy ship while the war lasts.
Art. 6. The captain, officers, and members of the crew, when
nationals of the enemy State, are not made prisoners of war, on con-
dition that they make a formal promise in writing, not to undertake,
while hostilities last, any service connected with the operations of the
war.
Art. 7. The names of the persons retaining their liberty under
the conditions laid down in Article 5, paragraph 2, and in Article 6,
are notified by the belligerent captor to the other belligerent. The
latter is forbidden knowingly to employ the sidd persons.
APPENDIX IX IXXXV
Art. 8. The provisions of the three preceding Articles do not ap-
ply to ships taking part in the hostilities.
Chafteb rV. Final Providona
Art. 9. The provisions of the present Ck)nvention do not apply
except between Contracting Powers, and then only if all the belliger-
ents are parties to the Ck)nvention.
TArtides providing for ratification follow.]
APPENDIX X
CONVENTION (XIII) CONCERNING THE RIGHTS
AND DUTIES OF NEUTRAL POWERS IN NAVAL
WAR
[Names of States.*]
With a view to harmonizing the divergent views which, in the eveitt
of naval war/ are still held on the relations between neutral Powers
and belligerent Powers, and to anticipating the difficulties to which
such divergence of views might give rise;
Seeing that, even if it is not possible at present to concert measures
applicable to all circumstances which may in practice occur, it is
nevertheless undeniably advantageous to frame, as far as possible,
rules of general application to meet the case where war has unfortu-
nately broken out;
Seeing that, in cases not covered by the present Convention, it is
expedient to take into consideration the general principles of the law
of nations;
Seeing that it is desirable that the Powers should issue detailed
enactments to regulate the results of the attitude of neutrality when
adopted by them ;
Seeing that it is, for neutral Powers, an admitted duty to apply these
rules impartially to the several belligerents ;
Seeing that, in conformity with these ideas, these rules should not,
in principle, be altered, in the course of the war, by a neutral Power,
except in a case where experience has shown the necessity for such
change for the protection of the rights of that Power;
Have agreed to observe the following common rules, which cannot
however modify provisions laid down in existing general Treaties, and
have appointed as their Plenipotentiaries, namely :
[Names of Plenipotentiaries.]
^ For names of States see Appendix IV, p. xlL
Ixxxvi
APPENDIX X Ixxxvii
Who, after having deposited their full powerSi found in good and
due form, have agreed upon the following provisions:
Article 1. Belligerents are bound to respect the sovereign rights of
neutral Powers and to abstain, in neutral territory or neutral waters,
from any act which would, if knowingly permitted by any Power, con-
stitute a non-fulfillment of neutrality.
Art. 2. Any act of hostility, including capture and the exercise of
the right of search, committed by belligerent war-ships in the terri-
torial waters of a neutral Power, constitutes a violation of neutrality
and is strictly forbidden.
Art. 3. When a ship has been captured in the territorial waters
of a neutral Power, this Power must employ, if the prize is still within
its jurisdiction, the means at its disposal to release the prize with its
officers and crew, and to intern the prize crew.
If the prize is not in the jurisdiction of the neutral Power, the cap-
tor Government, on the demand of that Power, must liberate the prize
with its officers and crew.
Art. 4. A Prize Court cannot be set up by a belligerent on neu-
tral territory or on a vessel in neutral waters.
Art. 5. Belligerents are forbidden to use neutral ports and waters
as a base of naval operations against their adversaries, and in par-
ticular to erect wireless telegraphy stations or any apparatus for
the pmpose of conmdunicating with the belligerent forces on land or
Art. 6. The supply, in any manner, directly or indirectly, by a
neutral Power to a belligerent Power, of war-ships, ammunition, or
war material of any kind whatever, is forbidden. -
Art. 7. A neutral Power is not bound to prevent the export or
transit, for the use of either belligerent, of arms, ammunitions, or, in
general, of anything which could be of use to an army or fleet.
Art. 8. A neutral Government is bound to employ the means at
its disposal to prevent the fitting out or arming of any vessel within
its jurisdiction which it has reason to believe is intended to cruise, or
engage in hostile operations, against a Power with which that Govern-
ment is at peace. It is also bound to display the same vigilance to
prevent the departure from its jurisdiction of any vessel intended to
cruise, or engage in hostile operations, which had been adapted entirely
or partly within the said jurisdiction for use in war.
Art. 9. A neutral Power must apply impartially to the two
belligerents the conditions, restrictions, or prohibitions made by it in
Ixxxviii APPENDIX X
regard to the admission into its ports, roadsteads, or territorial waters;
of belligerent war-ships or of their prizes.
Nevertheless, a neutral Power may forbid a belligerent vessel which
has failed to conform to the orders and regulations made by it, or
which has violated neutrality, to enter its ports or roadsteads.
Art. 10. The neutrality of a Power is not a£Fected by the mere
passage through its territorial waters of war-ships or prizes belonging
to belligerents.
Art. 11. A neutral Power may allow belligerent wardships to em-
ploy its licensed pilots.
Art. 12. In the absence of special provisions to the contrary in the
legislation of a neutral Power, belligerent war-ships are not permitted
to remain in the ports, roadsteads, or territorial waters of the sidd
Power for more than twenty-four hours, except in the cases covered by
the present Convention.
Art. 13. If a Power which has been informed of the outbreak of
hostilities learns that a belligerent war-ship is in one of its ports or
roadsteads, or in its territorial waters, it must notify the said ship to
depart within twenty-four hours or within the time prescribed by
local regulations.
Art. 14. A belligerent wardship may not prolong its stay in a neu-
tral port beyond the permissible time except on account of damage
or stress of weather. It must depart as soon as the cause of the delay
is at an end.
The regulations as to the question of the length of time which these
vessels may remain in neutral ports, roadsteads, or waters, do not ap-
ply to war-ships devoted exclusively to religious, scientific, or philan-
thropic purposes.
Art. 15. In the absence of special provisions to the contrary in the
legislation of a neutral Power, the maximum number of war-ships
belonging to a belligerent which may be in one of the ports or road-
steads of that Power simultaneously shall be three.
Art. 16. T\Tien war-ships belonging to both belligerents are pres-
ent simultaneously in a neutral port or roadstead, a period of not
less than twenty-four hours must elapse between the departure of the
ship belonging to one belligerent and the departure of the ship belong-
ing to the other.
The order of departure is determined by the order of arrival, unless
the ship which arrived first is so circumstanced that an extension of its
jstay is permissible.
APPENDIX X Ixxxix
A belligerent war-ehip may not leave a neutral port or roadstead
until twenty-four hours after the departure of a merchant-ship flying
the flag of its adversary.
Art. 17. In neutral ports and roadsteads belligerent war-ships
may only carry out such repairs as are absolutely necessary to render
them seaworthy, and may not add in any manner whatsoever to their
fighting force. The local authorities of the neutral Power shall decide
what repairs are necessary, and these must be carried out with the
least possible delay.
Art. 18. Belligerent warships may not make use of neutral ports,
roadsteads, or territorial waters for replenishing or increasing their
supplies of war material or their armament, or for completing their
crews.
Art. 19. Belligerent war-ships may only revictual in neutral ports
or roadsteads to bring up their supplies to the peace standard.
Similarly these vessels may only ship sufficient fuel to enable them
to reach the nearest port in their own country. They may, on the
other hand, fill up their bunkers built to carry fuel, when in neutral
countries which have adopted this method of determining the amount
of fuel to be supplied.
If, in accordance with the law of the neutral Power, the ships are
not supplied with coal within twenty-four hours of their arrival,
the permissible duration of their stay is extended by twenty-four
hours.
Art. 20. Belligerent war-ships which have shipped fuel in a port
belonging to a neutral Power may not within the succeeding three
months replenish their supply in a port of the same Power.
Art. 21. A prize may only be brought into a neutral port on ac-
count of unseaworthiness, stress of weather, or want of fuel or pro-
visions.
It must leave as soon as the circumstances which justified its entry
are at an end. If it does not, the neutral Power must order it to leave
at once; should it fail to obey, the neutral Power must employ the
means at its disposal to release it with its officers and crew and to in-
tern the prize crew.
Art. 22. A neutral Power must, similarly, release a prize brought
into one of its ports under circumstanpes other than those referred to
in Article 21.
Art. 23. A neutral Power may allow prizes to enter its ports and
roadsteads, whether or not under convoy, when they are brought there
XC APPENDIX X
to be sequestrated pending the decision of a Prise Court. It ma^
have the prize taken to another of its ports.
If the prize is convoyed by a war-ship, the prize crew may go on
board the convoying ship.
If the prize is not under convoy, the prize crew are left at liberty.
Art. 24. If, notwithstanding the notification of the neutral Power,
a belligerent ship of war does not leave a port where it is not entitled
to remain, the neutral Power is entitled to take such measures as it
considers necessary to render the ship incapable of taking the sea dur-
ing the war, and the commanding officer of the ship must facilitate the
execution of such measures.
When a belligerent ship is detained by a neutral Power, the officers
and crew are likewise detained.
The officers and crew thus detained may be left in the ship or kept
either on another vessel or on land, and may be subjected to the meas-
ures of restriction which it may appear necessary to impose upon
them. A sufficient number of men for looking after the vessel must,
however, be always left on board.
The officers may be left at liberty on giving their word not to quit
the neutral territory without permission.
Art. 25. A neutral Power is bound to exercise such surveillance
as the means at its disposal allow to prevent any violation of the pro-
visions of the above Articles occurring in its ports or roadsteads or in
its waters.
Art. 26. The exercise by a neutral Power of the rights laid down in
the present Convention can under no circimistances be considered as
an unfriendly act by one or other beUigerent who has accepted the
Article relating thereto.
Art. 27. The Contracting Powers shall commimicate to each other
in due course all laws, ordinances, and other enactments regulating
in their respective countries the status of belligerent war-ships in their
ports and waters, by means of a communication addressed to the
Government of the Netherlands and forwarded inmiediately by that
Government to the other Contracting Powers.
Art. 28. The provisions of the present Convention do not apply
except to the Contracting Powers, and then only if all the belligerents
are parties to the Convention.
[Articles providing for ratification follow.]
APPENDIX X Xd
[Reservation by the United States.]
Resolved (two-thirds of, the Senators present concurring therein), Hiat
the Senate advise and consent to the adherence of the United States
to a convention adopted by the Second International Peace Confer-
ence held at The Hague from June 15 to October 18, 1907, concerning
the rights and duties of neutral powers in naval war, reserving and
excluding, however, Article 23 thereof, which is in the following words:
A neutral power may allow prizes to enter its ports and roadsteads
whether or not under convoy, when they are brought there to be seques-
trated pending the decision of a prise court. It may have the prize taken
to another of its ports.
If the prize is convoyed by a war-ship, the prize crew may go on board
the convoying ship.
If the prize is not under convoy, the prize crew are left at hberty.
Resolved f further, That the United States adheres to this convention
with the understanding that the last clause of Article 3 implies the
duty of a neutral power to make the demand therein mentioned for
the return of a ship captured within the neutral jurisdiction and no
longer within that jurisdiction.
APPENDIX XI
DECLARATION OF LONDON
[Translation.]
DECLARATION CONCERNING THE LAWS OF NAVAL WAR
His Majesty the German Emperor, King of Prussia; the President
of the United States of America; His Majesty the Emperor of Austria,
King of Bohemia, &c., and Apostolic King of Hungary; His Majesty
the King of Spain; the President of the French Republic; His Majesty
the iting of the United Kingdom of Great Britain and Ireland and of
the British Dominion beyond the Seas, Emperor of India; His Maj-
esty the King of Italy; His Majesty the Emperor of Japan; Her Maj-
esty the Queen of the Netherlands; His Majesty the Emperor of All
the Russias;
Considering the invitation which the British Government has given
to various Powers to meet in conference in order to determine to-
gether as to what are the generally recognized rules of international
law within the meaning of Article 7 of the Convention of 18th
October, 1907, relative to the establishment of an International Prize
Court;
Recognizing all the advantages which, in the unfortunate event of
a naval war an agreement as to said rules would present, both as re-
gards peaceful commerce, and as regards the belligerents and their
diplomatic relations with neutral Governments;
Considering that the general principles of international law are
often in their practical application the' subject of divergent pro-
cedure;
Animated by the desire to insure henceforward a greater measure
of uniformity in this respect ;
Hoping that a work so important to the common welfare will meet
with general approval ;
xcii
APPENDIX XI XCui
Have appointed as their Plenipotentiaries; that is to say:
[Names of Plenipotentiaries.]
Who, after having communicated their full powers, found in good
and due form, have agreed to make the present Declaration:
PREUMINART PROVISION
The Signatory Powers are agreed that the rules contained in the
following chapters correspond in substance with the generally recog-
nized principles of international law.
Chapter I. Blockade in Time of War
Articlb 1. A blockade must be limited to the ports and coasts
belonging to, or occupied by, the enemy.
Art. 2. In accoidance with the Declaration of Paris, 1856, a
blockade, in order to be binding, must be effective — ^that is to say, it
must be maintained by a force sufficient really to prevent access to
the enemy coast.
Art. 3. The question whether a blockade is effective is a question
of fact.
Art. 4. A blockade is not regarded as raised if by bad weather
the blockading forces are temporarily driven off.
Art. 5. A blockade must be applied impartially to the ships of all
nations.
Art. 6. The commander of a blockading force may grant to a
war-ship permission to enter, and subsequently to leave, a blockaded
port.
Art. 7. In circimistances of distress, acknowledged by an author-
ity of the blockading forces, a neutral vessel may enter a place under
blockade, and subsequently leave it, provided that she has neither
discharged nor shipped any cargo.
Art. 8. A blockade, in order to be binding must be declared in
accordance with Article 9, and notified in accordance with Articles
11 and 16.
Art. 9. A declaration of blockade is made either by the blockad-
ing Power or by the naval authorities acting in its name.
It specifies —
(1) The date when the blockade begins.
(2) The geographical Umits of the coast blockaded.
(3) The delay to be allowed to neutral vessels for departure.
XCIV APPENDIX XI
Abt. 10. If the blockading Power, or the naval authorities act-
ing in its name, do not establish the blockade in conformity with the
provisions, which, in accordance with Article 9 (1) and (2), must
be inserted in the declaration of blockade, the declaration is void,
and a new declaration is necessary in order to make the blockade
operative.
Art. 11. A declaration of blockade is notified —
(1) To the neutral Powers, by the blockading Power by means of a
communication addressed to the Governments themselves, or to their
Representatives accredited to it.
(2) To the local authorities, by the officer commanding the block-
ading force. These authorities will, on their part, inform, as soon as
possible, the foreign consuls who exercise their functions in the port
or on the coast blockaded.
Art. 12. The rules relative to the declaration and to the notifica-
tion of blockade are applicable in the case in which the blockade may
have been extended, or may have been reestablished after having
been raised.
Art. 13. The voluntary raising of a blockade, as also any limita-
tion which may be introduced, must be notified in the manner pre-
scribed by Article 11.
Art. 14. The liability of a neutral vessel to capture for breach of
blockade is contingent on her knowledge, actual or presmnptive, of
the blockade.
Art. 15. Failing proof to the contrary, knowledge of the blockade
is presumed if the vessel left a neutral port subsequently to the notifi-
cation of the blockade made in sufficient time to the Power to whivh
such port belongs.
Art. 16. If a vessel which approaches a blockaded port does not
know, or cannot be presumed to know, of the blockade, the notification
must be made to the vessel itself by an officer of one of the ships of
the blockading force. This notification must be entered in the sdiip's
log book, with entry of the day and hour, as also of the geographical
position of the vessel at the time.
A neutral vessel which leaves a blockaded port must be allowed
to pass free, if through the negligence of the officer commanding the
blockading force, no declaration of blockade has been notified to the
local authorities, or, if in the declaration, as notified, no delay has
been indicated.
Art. 17. The seizure of neutral vessels for violation of blockade
APPENDIX XI XCV
may be made only within the radius of action of the ships of war aa-
fligned to maintain an effective blockade.
Art. 18. The blockading forces must not bar access to the ports
or to the coasts of neutrals.
Art. 19. Whatever may be the ulterior destination of the ship or
of her cargo, the evidence of violation of blockade is not sufficiently
conclusive to authorize the seizure of the ship if she is at the time
bound toward an unblockaded port.
Art. 20. A vessel which in violation of blockade has left a block-
aded port or has attempted to enter the port is liable to capture so
long as she is piu^ued by a ship of the blockading force. If the pur-
suit is abandoned, or if the blockade is raised, her capt\u*e can no
longer be effected.
Art. 21. A vessel found guilty of breach of blockade is liable to
oondenmation. The cargo is also liable to condemnation, unless it is
proved that at the time the goods were shipped the shipper neither
knew nor could have known of the intention to violate the blockade.
Chapter II. Contraband of War
Art. 22. The following articles and materials are, without notice,
regarded as contraband, under the name of absolute contraband:
1. Arms of all kinds, including arms for sporting purposes, and
their unassembled distinctive parts.
2. Projectiles, charges, and cartridges of all kinds, and their unas-
sembled distinctive parts.
3. Powder and explosives specially adapted for use in war.
4. Gun carriages, caissons, limbers, military wagons, field forges,
and their imassembled distinctive parts.
5. Clothing and equipment of a distinctively military character.
6. All kinds of harness of a distinctively military character.
7. Saddle, draught, and pack animals suitable for use in war.
8. Articles of camp equipment and their unassembled distinctive
parts.
9. Armor plates.
10. War-ships and boats and their unassembled parts specially dis-
tinctive as only suitable for use in a vessel of war.
11. Implements and apparatus made exclusively for the manufac-
ture of munitions of war, for the manufacture or repair of arms or of
military material, for use on land and sea.
XCvi APPENDIX XI
i
Art. 23. Articles and materials which are exclusively used for
war may be added to the list of absolute contraband by means of a
notified declaration.
The notification is addressed to the Governments of other Powers
or to their Representatives accredited to the Power which makes the
declaration. A notification made after the opening of hostilities is
addressed only to the neutral Powers.
Art. 24. The following articles and materials, susceptible of use in
war as well as for purposes of peace, are without notice regarded as
contraband of war, under the name of conditional contraband:
(1) Food.
(2) Forage and grain suitable for feeding animals.
(3) Clothing and fabrics for clothing, boots and shoes, suitable for
military use.
(4) Gold and silver in coin or bullion ; paper money.
(5) Vehicles of all kinds available for use in war, and their unas-
sembled parts.
(6) Vessels, craft, and boats of all kinds, floating docks, parts of
docks as also their unassembled parts.
(7) Fixed railway material and rolling stock, and material for tele-
graphs, radiotelegraphs and telephones.
(8) Balloons and flying machines and their unassembled distinctive
parts as also their accessories, articles and materials distinctive as
intended for use in connection with balloons or flying machines.
(9) Fuel; lubricants.
(10) Powder and explosives which are not specially adapted for use
in war.
(11) Barbed wire as also the implements for placing and cutting
the same.
(12) Horseshoes and horseshoeing materials.
(13) Harness and saddlery material.
(14) Binocular glasses, telescopes, chronometers, and all kinds of
nautical instruments.
Art. 25. Articles and materials susceptible of use in war as well
as for purposes of peace, and other than those enumerated in Articles
22 and 24, may be added to the list of conditional contraband by
means of a declaration which must be notified in the manner provided
for in the second paragraph of Article 23.
Art. 26. If a Power waives, so far as it is concerned, the right to re-
gard as contraband of war articles and materials which are comprised
APPENDIX XI XCvii
in any of the classes enumerated m Articles 22 and 24, it shall make
known its intention by a declaration notified in the manner provided
for in the second paragraph of Article 23.
Art. 27. Articles and materials, which are not susceptible of use
in war, are not to be declared contraband of war.
Art. 28. The foUowing articles are not to be declared contraband
of war:
(1) Raw cotton, wool, silk, jute, flax, hemp, and other raw materials
of the textile industries, and also yams of the same.
(2) Nuts and oil seeds; copra.
(3) Rubber, resins, gums and lacs; hops.
(4) Raw hides, horns, bones and ivory.
(5) Natural and artificial manures, including nitrates and phos-
phates for agricultural purposes.
(6) Metallic ores.
(7) Earths, clays, lime, chalk, stone, including marble, bricks, slates
and tiles.
(8) Chinaware and glass.
(9) Paper and materials prepared for its manufacture.
(10) Soap, paint and colors, including articles exclusively used in
their manufacture, and varnishes.
(11) Bleaching powder, soda ash, caustic soda, salt cake, ammonia,
sulphate of ammonia, and sulphate of copper.
(12) Agricultural, mining, textile, and printing machinery.
(13) Precious stones, semi-precious stones, pearls, mother-of-pearl,
and coral.
(14) Clocks and watches, other than chronometers.
(15) .Fashion and fancy goods.
(16) Feathers of all kinds, hairs, and bristles.
(17) Articles of household furniture and decorations; office furniture
and accessories.
Art. 29. Neither are the following to be regarded as contraband
of war:
(1) Articles and materials serving exclusively for the care of the sick
and wounded. They may, nevertheless, in case of urgent military
necessity and, subject to the pa3rment of compensation, be requisitioned,
if their destination is that specified in Article 30.
(2) Articles and materials intended for the use of the vessel in which
they are foimd, as well as those for the use of her crew and passengers
during the voyage.
XCVili APPENDIX XI
Art. 30. Absolute contraband is liable to capture if it is shown to
be destined to territory belonging to or occupied by the enemy, or to
the armed forces of the enemy. It is immaterial whether the carriage of
the goods is direct or entails either transhipment or transport over
land.
Art. 31. Proof of the destination specified in Article 30 is com-
plete in the following cases:
(1) When the goods are documented to be discharged in a port of
the enemy, or to be delivered to his armed forces.
(2) When the vessel is to call at enemy ports only, or when she is to
touch at a port of the enemy or to join his armed forces, before arriv-
ing at the neutral port for which the goods are documented.
Art. 32. The ship's papers are complete proof of the voyage of a
vessel transporting absolute contraband, unless the vessel is encoun-
tered having manifestly deviated from the route which she ought to
follow according to the ship's papers and being imable to justify by
sufficient reason such deviation.
Art. 33. Conditional contraband is liable to capture if it is shown
that it is destined for the use of the armed forces or of a government
department of the enemy State, unless in this latter case the circum-
stances show that the articles cannot in fact be used for the purposes
of the war in progress. This latter exception does not apply to a
consignment coming under Article 24 (4).
Art. 34. There is presumption of the destination referred to in
Article 33 if the consignment is addressed to enemy authorities, or to
a merchant, established in the enemy country, and when it is well
known that this merchant supplies articles and material of this kind
to the enemy. The presumption is the same if the consignment is
destined to a fortified place of the enemy, or to another place serving
as a base for the armed forces of the enemy; this presumption, how-
ever, does not apply to the merchant-vessel herself bound for one of
these places and of which vessel it is sought to show the contraband
character.
Faihng the above presumptions, the destination is presumed innocent.
The presumptions laid down in this Article admit proof to the con-
trary.
Art. 35. Conditional contraband is not liable to capture, except
when on board a vessel bound for territory belonging to or occupied
by the enemy, or for the armed forces of the enemy, and when it is
not to be discharged at an intervening neutral port.
APPENDIX XI XCIX
The ship's papers are conclusive proof both of the voyage of the
vessel as also of the port of discharge of the goods, unless the vessel
is encountered having manifestly deviated from the route which she
ought to follow according to the ship's papers and being unable to
justify by sufficient reason such deviation.
Art. 36. Notwithstanding the provisions of Article 35, if the terri-
tory of the enemy has no seaboard, conditional contraband is liable to
capture if it is shown that it has the destination referred to in Ar-
ticle 33.
Art. 37. A vessel canying articles liable to capture as absolute oi
conditional contraband may be captured on the high seas or in the ter-
ritorial waters of the belligerents throughout the whole course of her
voyage, even if she has the intention to touch at a port of call before
reaching the hostile destination.
Art. 38. A capture is not to be made on the ground of a carriage
of contraband previously accomplished and at the time completed.
Art. 39. Contraband is liable to condemnation.
Art. 40. The confiscation of the vessel carrying contraband is al-
lowed if the contraband forms, either by value, by weight, by volume,
or by freight, more than half the cargo.
Art. 41. If a vessel carrying contraband is released, the expenses
incurred by the captor in the trial before the national prize court as also
for the preservation and custody of the ship and cargo during the pro-
ceedings are chargeable against the ship.
Art. 42. Goods which belong to the owner of the contraband and
which are on board the same vessel are liable to condemnation.
Art. 43. If a vessel is encountered at sea making a voyage in
ignorance of the hostilities or of the declaration of contraband affect-
ing her cargo, the contraband is not to be condemned except with in-
demnity; the vessel herself and the remainder of the cargo are exempt
from condemnation and from the expenses referred to in Article 41.
The case is the same if the master after becoming aware of the open-
ing of hostilities, or of the declaration of contraband, has not yet been
able to discharge the contraband.
A vessel is deemed to be aware of the state of war, or of the declara-
tion of contraband, if she left a neutral port after there had been made
in sufficient time the notification of the opening of hostilities, or of
the declaration of contraband, to the power to which such port belongs.
A vessel is also deemed to be aware of a state of war if she left an en-
emy port after the opening of hostilities.
C APPENDIX XI
Art. 44. A vessel stopped because carrying contraband, and not
liable to condemnation on account of the proportion of contraband,
may, according to circumstances, be allowed to continue her voyage
if the master is ready to deliver the contraband to the belligerent ship.
The deUvery of the contraband is to be entered by the captor on
the log book of the vessel stopped and the master of the vessel must
furnish the captor duly certified copies of all relevant papers.
The captor is at hberty to destroy the contraband which is thus
delivered to him.
Chapter III. Unneutral Service
Art. 45. A neutral vessel is liable to be condemned and, in a gen-
eral wav, is liable to the same treatment which a neutral vessel would
undergo when liable to condemnation on account of contraband of war:
(1) If she is making a voyage specially with a view to the transport
of individual passengers who are embodied in the armed force of the
enemy, or with a view to the transmission of information in the in-
terest of the enemy.
(2) If, with the knowledge of the owner, of the one who charters
the vessel entire, or of the master, she is transporting a military de-
tachment of the enemy, or one or more persons who, during the voy-
age, lend direct assistance to the operations of the enemy.
In the cases specified in the preceding paragraphs (1) and (2), goods
belonging to the owner of the vessel are likewise liable to condemna-
tion.
The provisions of the present Article do not apply if when the vessel
is encountered at sea she is unaware of the opening of hostilities, or if
the master, after becoming aware of the opening of hostilities, has not
been able to disembark the passengers. The vessel is deemed to know
of the state of war if she left an enemy port after the opening of hos-
tilities, or a neutral port after there had been made in sufficient time
a notification of the opening of hostilities to the Power to which sudi
port belongs.
Art. 46. A neutral vessel is liable to be condemned and, in a gen-
eral way, is liable to the same treatment which she would undergo if
she were a merchant- vessel of the enemy: —
(1) If she takes a direct part in the hostilities.
(2) If she is under the orders or under the control of an agent placed
on board by the enemy Government.
APPENDIX XI d
(3) If she is chartered entire by the enemy Government.
(4) If she is at the time and exclusively either devoted to the trans-
port of enemy troops or to the transmission of information in the in-
terest of the enemy.
In the cases specified in the present Article, the goods belonging to
the owner of the vessel are likewise liable to condemnation.
Art. 47. Any individual embodied in the armed force of the enemy
and who is found on board a neutral merchant-vessel, may be made
a prisoner of war, even though there be no ground for the capture of the
vessel.
Chaptbr IV. Destruction of Neutral Prizes
Art. 48. A captured neutral vessel is not to be destroyed by the
captor, but must be taken into such port as is proper in order to de^
termine there the rights as regards the validity of the capture.
Art. 49. As an exception, a neutral vessel captured by a belliger-
ent ship, and which would be liable to condemnation, may be de-
stroyed if the observance of Article 48 would involve danger to the
ship of war or to the success of the operations in which she is at the
time engaged.
Art. 50. Before the destruction the persons on board must be
placed in safety, and all the ship's papers and other documents which
those interested consider relevant for the decision as to the validity
of the capture must be taken on board the ship of war.
Art. 51. A captor who has destroyed a neutral vessel must, as a
condition precedent to any decision upon the validity of the capture,
establish in fact that he only acted in the face of an exceptional neces-
sity such as is contemplated in Article 49. Failing to do this, he must
compensate the parties interested without examination as to whether
or not the capture was valid.
Art. 52. If the capture of a neutral vessel, of which the destruction
has been justifiod, is subsequently held to be invalid, the captor must
compensate those interested, in place of the restitution to which they
would have been entitled.
Art. 53. If neutral goods which were not liable to condemnation
have been destroyed with the vessel, the owner of such goods is en-
titled to compensation.
Art. 54. The captor has the right to require the giving up of, or
to proceed to destroy, goods liable to condemnation found on board a
vessel which herself is not liable to condemnation, provided that the
CU APPENDIX XI
circumstances are such as, according to Article 49, justify the de-
struction of a vessel liable to condemnation. The captor enters the
goods delivered or destroyed in the log book of the vessel stopped, and
must procure from the master duly certified copies of all relevant
papers. When the giving up or destruction has been completed and
the formalities have been fulfilled, the master must be allowed to
continue his voyage.
The provisions of Articles 51 and 52 respecting the obligations of a
captor who has destroyed a neutral vessel are applicable.
Chapter V. Transfer of Flag
Art. 55. The transfer of an enemy vessel to a neutral flag, effected
before the opening of hostilities, is valid, unless it is proved that such
transfer was made in order to evade the consequences which the
enemy character of the vessel would involve. There is, however, a
presumption that the transfer is void if the bill of sale is not on
board in case the vessel has lost her belligerent nationality less than
sixty days before the opening of hostilities. Proof to the contrary is
admitted.
There is absolute presiunption of the validity of a transfer effected
more than thirty days before the opening of hostilities if it is absolute,
complete, conforms to the laws of the coimtries concerned, and if its
effect is such that the control of the vessel and the profits of her em-
plo3anent do not remain in the same hands as before the transfer.
If, however, the vessel lost her belligerent nationality less than sixty
days before the opening of hostilities, and if the bill of sale is not
on board the capture of the vessel would not give a right to com-
pensation.
Art. 56. The transfer of an enemy vessel to a neutral flag, effected
after the opening of hostilities, is void unless it is> proved that such
transfer was not made in order to evade the consequences which the
enemy character of the vessel would involve.
There is, however, absolute presumption that a transfer is void :
(1) If the transfer has been made during a voyage or in a blockaded
port.
(2) If there is a right of redemption or of reversion.
(3) If the requirements upon which the right to fly the flag depends,
according to the laws of the cotmtry of the flag hoisted, have not been
observed.
APPENDIX XI ciu
Chapter VI. Enemy Character
Art. 57. Subject to the provisions respecting the transfer of flag,
the neutral or enemy character of a vessel is determined by the flag
which she is entitled to fly.
The case in which a neutral vessel is engaged in a trade which is
reserved in time of peace, remains outside the scope of, and is in no
wise affected by this rule.
Art. 58. The neutral or enemy character of goods found on board
an enemy vessel is determined by the neutral or enemy character of
the owner.
Art. 59. If the neutral character of goods found on board an en-
emy vessel is not proven, they are presumed to be enemy goods.
Art. 60. The enemy character of goods on board an enemy vessel
continues until they reach their destination, notwithstanding an in-
tervening transfer after the opening of hostilities while the goods are
being forwarded.
If, however, prior to the capture a former neutral owner exercises,
on the bankruptcy of a present enemy owner, a legal right to recover
the goods, they regain their neutral character.
Chapter VII. Convoy
Art. 61. Neutral vessels under convoy of their national flag are
exempt from search. The conmiander of a convoy gives, in writing,
at the request of the commander of a belligerent ship of war, all in-
formation as to the character of the vessels and their cargoes, which
could be obtained by visit and search.
Art. 62. If the commander of the belligerent ship of war has rea-
son to suspect that the confidence of the commander of the convoy
has been abused, he communicates his suspicions to him. In such
a case it is for the commander of the convoy alone to conduct an in-
vestigation. He must state the result of such investigation in a re-
port, of which a copy is furnished to the officer of the ship of war.
If, in the opinion of the commander of the convoy, the facts thus
stated justify the capture of one or more vessels, the protection of the
convoy must be withdrawn from such vessels.
civ APPENDIX XI
Chapter VIII. Resistance to Search
Art. 63. Forcible resistance to the legitimate exercise of the right
of stoppage, visit and search, and capture, involves in all cases the
condemnation of the vessel. The cargo is liable to the same treat-
ment which the cargo of an enemy vessel would undergo. Goods be-
longing to the master or owner of the vessel are regarded as enemy
goods.
Chapter IX. Compensation
Art. 64. If the capture of a vessel or of goods is not upheld by the
prize court, or if without being brought to judgment the captured
vessel is released, those interested have the right to compensation,
unless there were sufficient reasons for capturing the vessel or goods.
FINAL PROVISIONS
Art. 65. The provisions of the present Declaration form an in-
divisible whole.
Art. 66. The Signatory Powers undertake to secure the reciprocal
observance of the rules contained in this Declaration in case of a war
in which the belligerents are all parties to this Declaration. They
will therefore issue the necessary instructions to their authorities and
to their armed forces, and will take the measures which are proper
in order to guarantee the application of the Declaration by their
Courts and more particularly by their prize courts.
Art. 67. The present Declaration shall be ratified as soon as
possible.
The ratifications shall be deposited in London.
The first deposit of ratifications shall be recorded in a Protocol
signed by the Representatives of the Powers taking part therein, and
by His Britannic Majesty's Principal Secretary of State for Foreign
Affairs.
The subsequent deposits of ratifications shall be made by means
of a written notification addressed to the British Government, and
accompanied by the instrument of ratification.
A duly certified copy of the Protocol relating to the first deposit of
ratifications, and of the notifications mentioned in the preceding para-
graph as well as of the instruments of ratification which accompany
them, shall be immediately sent by the British Government, through
the diplomatic channel, to the Signatory Power9« The 3cud Govern-
APPENDIX XI CV
ment shall, in the cases contemplated in the preceding paragraph,
inform them at the same time of the date on which it received the
notification.
Art. 68. The present Declaration shall take effect, in the case of
the Powers which were parties to the first deposit of ratifications, sixty
days after the date of the Protocol recording such deposit, and, in the
case of the Powers which shall ratify subsequently, sixty dayB after
the notification of their ratification shall have been received by the
British Government.
Abt. 69. If it happens that one of the Signatory Powers wishes to
denoimce the present Declaration, such denunciation can only be
made to take effect at the end of a period of twelve years, beginning
sixty days after the first deposit of ratifications, and, after that time,
at the end of successive periods of six years, of which the first will be-
gin at the end of the period of twelve years.
Such denunciation must be notified in writing, at least one year in
advance, to the British Government, which shall inform all the other
Powers.
It will only operate in respect of the Power which shall have made
the notification.
Akt. 70. The Powers represented at the London Naval Confer-
cince attach particular value to the general recognition of the rules
which they have adopted, and express the hope that the Powers which
were not represented will accede to the present Declaration. They
request the British Government to invite them to do so.
A Power which desires to accede notifies its intention in writing to
the British Government, in transmitting the act of accession, which
will be deposited in the archives of the said Government.
The said Government shall forthwith transmit to all the other
Powers a duly certified copy of the notification, as also of the act of
accession, stating the date on which it received the notification. The
accession takes effect sixty days after such date.
The position of the acceding Powers shall be in all matters concern-
ing this Declaration similar to the position of the Signatory Powers.
Art. 71. The present Declaration, which shall bear the date of the
26th February, 1909, may be signed in London until the 30th June,
1909, by the Plenipotentiaries of the Powers represented at the Naval
Conference.
In faith whereof the Plenipotentiaries have signed the present Dec-
laration, and have thereto affixed their seals.
C5V1 APPENDIX Xn
Done at London, the twenty-sixth day of February, one thousand
nine hundred and nine, in a single original, which shall remain de-
posited in the archives of the British Government, and of which duty
certified copies shall be sent through the diplomatic channel to iAe
Powers represented at the Naval Conference.
APPENDIX XII
CONFERENCE ON THE LIMITATION OF ARMAMENT
Tkbaty in Relation to the Use of Submabines and Noxious
Gases in Warfare
The United States of America, the British Empire, France, Italy
and Japan, hereinafter referred to as the Signatory Powers, desiring
to make more effective the rules adopted by civilized nations for the
protection of the lives of neutrals and noncombatants at sea in time
of war, and to prevent the use in war of noxious gases and chemicals,
have determined to conclude a Treaty to this effect, and have appointed
as their Plenipotentiaries:
[Names of Plenipotentiaries.]
Who, having conununicated their Full Powers, found in good and
due form, have agreed as follows:
Abttcle 1. The Signatory Powers declare that among the rules
adopted by civilized nations for the protection of the lives of neutrals
and noncombatants at sea in time of war, the foUowing are to be deemed
an established part of international law;
(1) A merchant vessel must be ordered to submit to visit and search
to determine its character before it can be seized.
A merchant vessel must not be attacked unless it refuse to submit
to visit and search after warning, or to proceed as directed after seizure.
A merchant vessel must not be destroyed unless the crew and pas-
sengers have been first placed in safety.
(2) Belligerent submarines are not under any circumstances ex-
empt from the universal rules above stated ; and if a submarine can
not capture a merchant vessel in conformity with these rules the ex-
isting law of nations requires it to desist from attack and from seizure
and to permit the merchant vessel to proceed immolested.
Abt. 2. The Signatory Powers invite all other civilized Powers
to express their assent to the foregoing statement of established law
so that there may be a clear understanding throughout the world of the
standards of conduct by which the public opinion of the world is to
pass judgment upon future belligerents.
cvii
cviii APPENDIX XII
Art. 3. The Signatory Powers, desirmg to insure the enforcement
of the humane ruleB of existing law declared by them with respect to
attacks upon and the seisure and destruction of merchant ships, fur-
ther declare that any person in the service of any Power who shall vio-
late any of those rules, whether or not such person is under orders of
a governmental superior, shall be deemed to have violated the laws of
war and shall be liable to trial and punishment as if for an act of piracy
and may be brought to trial before the civil or military authorities of
any Power within the jurisdiction of which he may be found.
Art. 4 The Signatory Powers recognize the practical impoasi-
bUity of using submarines as conunerce destroyers without violating,
as they were violated in the recent war of 1914-1918, the require-
ments universally accepted by civilized nations for the protection
of the lives of neutrals and noncombatants, and to the end that the
prohibition of the use of submarines as commerce destroyers shall be
universally accepted as a part of the law of nations they now accept
that prohibition as henceforth binding as between themselves and
they invite all other nations to adhere thereto.
Art. 5. The use in war of asphyxiating, poisonous or other gases,
and all analogous liquids, materials or devices, having been justly
condemned by the general opinion of the civilized world and a pro-
hibition of such use having been declared in treaties to which a majority
of the civilized Powers are parties,
The Signatory Powers, to the end that this prohibition shall be uni-
versally accepted as a part of international law binding alike the con-
science and practice of nations, declare their assent to such prohibition,
agree to be bound thereby as between themselves and invite all other
civilized nations to adhere thereto.
Art. 6. The present Treaty shall be ratified as soon as possible
in accordance with the constitutional methods of the Signatory Powers
and shall take effect on the deposit of all the ratifications, which shall
take place at Washington.
The Government of the United States will transmit to all the Sig-
natory Powers a certified copy of the proc^verbal of the deposit of
ratifications.
The present Treaty, of which the French and English texts are
both authentic, shall remain deposited in the Archives of the Govern-
ment of the United States, and duly certified copies thereof will be
transmitted by that Government to each of the Signatory Powers.
Art. 7. The Government of the United States will further trans-
APPENDIX XII CIX
mit to each of the Non-Signatory Powers a duly certified copy of the
present Treaty and invite its adherence thereto.
Any Non-Signatory Power may adhere to the present Treaty by
communicating an Instrument of Adherence to the Government of
the United States, which will thereupon transmit to each of the Sig-
natory and Adhering Powers a certified copy of each Instrument of
Adherence.
In faith whereof, the above named Plenipotentiaries have signed
the present Treaty.
Done at the City of Washington, the sixth day of February, one
thousand nine hundred and twenty-two.
APPENDIX XIII
TREATY OF PEACE, JUNE 28, 1919
The Covenant of the League of Nations
PARTI
The High Contracting Parties,
In order to promote international co-operation and to achieve in-
ternational peace and security
by the acceptance of obUgations not to resort to war,
by the prescription of open, just and honourable relations be-
tween nations,
by the firm establishment of the imderstandings of international
law as the actual rule of conduct among Governments, and
by the maintenance of justice and a scrupulous respect for all
treaty obligations in the dealings of organised peoples with
one another,
Agree to this Covenant of the League of Nations.
Article 1. The original Members of the League of Nations shall
be those of the Signatories which are named in the Annex to this Cov-
enant and also such of those other States named in the Annex as shall
accede without reservation to this Covenant. Such accession shall be
effected by a Declaration deposited with the Secretariat within two
months of the coming into force of the Covenant. Notice thereof
shall be sent to all other Members of the League.
Any fully self-governing State, Dominion or Colony not named in
the Annex may become a Member of the League if its admission is
agreed to by two-thirds of the Assembly, provided that it shall give
effective guarantees of its sincere intention to observe its international
obhgations, and shall accept such regulations as may be prescribed by
the licague in regard to its mihtary, naval and air forces and arma-
ments.
Any Member of the League may, after two years' notice of its in-
tention 80 to do, withdraw from the League, provided that all its inter-
national obligations and all its obligations under this Covenant shall
have been fulfilled at the time of its withdrawal.
ex
APPENDIX XIII CXI
Abt. 2. The action of the League under this Covenant shall be
effected through the instrumentality of an Assembly and of a Council,
with a permanent Secretariat.
Art. 3. The Assembly shall oonsbt of Representatives of the
Members of the League.
The Assembly shall meet at stated intervals and from time to time
as occasion may require at the Seat of the League or at such other
place as may be decided upon.
The Assembly may deal at its meetings with any matter within
the sphere of action of the League or affecting the peace of the world.
At meetings of the Assembly each Member of the League shall have
one vote, and may have not more than three Representatives.
Abt. 4. The Coimcil shall consist of Representatives of the Prin-
cipal Allied and Associated Powers, together with Representatives of
four other Members of the League. These four Members of the League
shall be selected by the Assembly from time to time in its discretion.
Until the appointment of the Representatives of the four Members
of the League first selected by the Assembly, Representatives of Bel-
gium, Brazil, Spain and Greece shall be members of the Council.
With the approval of the majority of the Assembly, the Council
may name additional Members of the League whose Representatives
shall always be members of the Council ; the Council with like ap-
proval may increase the number of Members of the League to be
selected by the Assembly for representation on the Council.
The Council shall meet from time to time as occasion may require,
and at least once a year, at the Seat of the League, or at such other
place as may be decided upon.
The Council may deal at its meetings with any matter within the
sphere of action of the League or affecting the peace of the world.
Any member of the League not represented on the Council shall
be invited to send a Representative to sit as a member at any meet-
ing of the Council during the consideration of matters specially
affecting the interests of that Member of the League.
At meetings of the Council, each Member of the League repre-
sented on the Council shall have one vote, and may have not more
than one Representative.
Art. 5. Except where otherwise expressly provided in this Cov-
enant or by the terms of the present Treaty, decisions at any meeting
of the Assembly or of the Council shall require the agreement of aU
the Members of the League represented at the meeting.
Cxil APPENDIX XIII
All matters of prooedure at meetings of the Assembly or of the
Ck)uncil, including the appointment of Committees to investigate
particular matters, shall be regulated by the Assembly or by the
Council and may be decided by a majority of the Members of the
League represented at the meeting.
The first meeting of the Assembly and the first meeting of the
Council shall be sunmioned by the President of the United States of
America.
Abt. 6. The permanent Secretariat shall be established at the Seat
of the League. The Secretariat shall comprise a Secretary General
and such secretaries and staff as may be required.
The first Secretary General shall be the person named in the Annex ;
thereafter the Secretary General shall be appointed by the Council
with the approval of the majority of the Assembly.
The secretaries and staff of the Secretariat shall be appointed by
the Secretary Greneral with the approval of the Council.
The Secretary General shall act in that capacity at all meetings
of the Assembly and of the Council.
The expenses of the Secretariat shall be borne by the Members of
the League in accordance with the apportionment of the expenses of
the International Bureau of the Universal Postal Union.
Art. 7. The Seat of the League is established at Geneva.
The Council may at any time decide that the Seat of the League
shall be established elsewhere.
All positions under or in connection with the League, including
the Secretariat, shall be open equally to men and women.
Representatives of the Members of the League and officials of the
League when engaged on the business of the League shall enjoy diplo-
matic privileges and immunities.
The buildings and other property occupied by the League or its
officials or by Representatives attending its meetings shall be inviolable.
Art. 8. The Members of the League recognise that the main-
tenance of peace requires the reduction of national armaments to the
lowest point consistent with national safety and the enforcement by
common action of international obligations.
The Council, taking account of the geographical situation and cir-
cumstances of each State, shall formulate plans for such reduction
for the consideration and action of the several Governments.
Such plans shall be subject to reconsideration and revision at least
every ten years.
APPENDIX XIII cxiii
After these plans shall have been adopted by the several Govem-
mentSy the limits of armaments therein fixed shall not be exceeded
without the concurrence of the Council.
The Members of the League agree that the manufacture by private
enterprise of munitions and implements of war is open to grave ob-
jections. The Council shall advise how the evO effects attendant
upon such manufacture can be prevented, due regard being had to
the necessities of those Members of the League which are not able
to manufacture the munitions and implements of war necessary for
their safety.
The Members of the League undertake to interchange full and frank
information as to the scale of their armaments, their military, naval
and air programmes and the condition of such of their industries as
are adaptable to war-like purposes.
Art. 0. A permanent Commission shaU be constituted to advise the
Council on the execution of the provisions of Articles 1 and 8 and on
military, naval and air questions generally.
Art. 10. The Members of the League undertake to respect and
preserve as against external aggression the territorial integrity and
existing political independence of all Members of the League. In
case of any such aggression or in case of any threat or danger of such
aggression the Council shall advise upon the means by which this ob-
ligation shall be fulfilled.
Art. IL Any war or threat of war, whether immediately affecting
any of the Members of the League or not, is hereby declared a matter of
concern to the whole League, and the League shall take any action
that may be deemed wise and effectual to safeguard the peace of
nations. In case any such emergency should arise the Secretary
General shall on the request of any Member of the League forthwith
summon a meeting of the Council.
It is also declared to be the friendly right of each Member of the
League to bring to the attention of the Assembly or of the Council
any circumstance whatever affecting international relations which
threatens to disturb international peace or the good understanding
between nations upon which peace depends.
Art. 12. The Members of the League agree that if there should
arise between them any dispute likely to lead to a rupture, they will
submit the matter either to arbitration or to inquiry by the Council,
and they agree in no case to resort to war until three months after the
award by the arbitrators or the report by the Council.
CXIV APPENDIX XIII
In any case under this Article the award of the arbitrators shaU be
made within a reasonable time, and the report of the Council shall
be made within six months after the submission of the dispute.
Art. 13. The Members of the League agree that whenever any
dispute shall arise between them which they recognise to be suitable
for submission to arbitration and which cannot be satisfactorily settled
by diplomacy, they will submit the whole subject-matter to arbitration.
Disputes as to the interpretation of a treaty, as to any question of
international law, as to the existence of any fact which if established
would constitute a breach of any international obligation, or as to the
extent and nature of the reparation to be made for any such breach,
are declared to be among those which are generally suitable for sub-
mission to arbitration.
For the consideration of any such dispute the court of arbitration
to which the case is referred shall be the Court agreed on by the
parties to the dispute or stipulated in any convention existing be-
tween them.
The Members of the League agree that they wOl carry out in full
good faith any award that may be rendered, and that they will not
resort to war against a Member of the League which complies there-
with. In the event of any failure to carry out such an award, the
Council shall propose what steps should be taken to give effect thereto.
Art. 14. The Council shall formulate and submit to the Members
of the League for adoption plans for the establishment of a Permanent
Court of International Justice. The Court shall be competent to
hear and determine any dispute of an international character which
the parties thereto submit to it. The Court may also give an ad-
visory opinion upon any dispute or question referred to it by the
Council or by the Assembly.
Art. 15. If there should arise between Members of the League any
dispute likely to lead to a rupture, which is not submitted to arbitration
in accordance with Article 13, the Members of the League agree
that they will submit the matter to the Council. Any party to the
dispute may effect such submission by giving notice of the existence of
the dispute to the Secretary General, who will make all necessary
arrangements for a full investigation and consideration thereof.
For this purpose the parties to the dispute will communicate to
the Secretary General, as promptly as possible, statements of their
case with aU the relevant facts and papers, and the Council may
forthwith direct the publication thereof.
APPENDIX XIII CXV
The Council shall endeavour to effect a settlement of the dispute, and
if such efforts are successful, a statement shall be made public giving
such facts and explanations regarding the dispute and the terms of
settlement thereof as the Council may deem appropriate.
If the diispute is not thus settled, the Council either unanimously
or by a majority vote shall make and publish a report containing a
statement of the facts of the dispute and the recommendations which
are deemed just and proper in regard thereto.
Any Member of the League represented on the Council may make
public a statement of the facts of the dispute and of its conclusions
regarding the same.
If a report by the Council is unanimously agreed to by the mem-
bers thereof other than the Representatives of one or more of the parties
to the dispute, the Members of the League agree that they will not go
to war with any party to the dispute which complies with the recom-
mendations of the report.
If the Council fails to reach a report which is unanimously agreed
to by the members thereof, other than the Representatives of one or
more of the parties to the dispute, the Members of the League reserve
to themselves the right to take such action as they shall consider neces-
sary for the maintenance of right and justice.
If the dispute between the parties is claimed by one of them, and
is found by the Council, to arise out of a matter which by international
law is soldy within the domestic jurisdiction of that party, the Council
shall so report, and shall make no recommendation as to its settle-
ment.
The Council may in any case under this Article refer the dispute
to the Assembly. The dispute shall be so referred at the request of
either party to the dispute, provided that such request be made within
fourteen days after the submission of the dispute to the Council.
In any case referred to the Assembly, all the provisions of this Article
and of Article 12 relating to the action and powers of the Council shall
apply to the action and powers of the Assembly, provided that a report
made by the Assembly, if concurred in by the Representatives of those
Members of the League represented on the Council and of a majority
of the other Members of the League, exclusive in each case of the Rep-
resentatives of the parties to the dispute, shall have the same force
as a report by the Council concurred in by all the members thereof
other than the Representatives of one or more of the parties to the
dispute.
CXvi APPENDIX XIII
Art. 16. Should any Member of the League resort to war in dis-
regard of its covenants under Articles 12, 13 or 15, it shall ipso facto
be deemed to have committed an act of war against all other Members
of the League, which hereby undertake inmiediately to subject it to
the severance of all trade or financial relations, the prohibition of all
intercourse between their nationals and the nationals of the covenant-
breaking State, and the prevention of all financial, commercial or
personal intercourse between the nationals of the covenant-breaking
State and the nationals of any other State, whether a Member of the
League or not.
It shall be the duty of the Council in such case to recommend to the
several governments concerned what effective military, naval or air
force the Members of the League shall severally contribute to the
armed forces to be used to protect the covenants of the League.
The Members of the League agree, further, that they will mutually
support one another in the financial and economic measures which are
taken under this Article, in order to minimise the loss and inconvenience
resulting from the above measures, and that they will mutually sup-
port one another in resisting any special measiu-es aimed at one of
their number by the covenant-breaking State, and that they will take
the necessary steps to afford passage through their territory to the
forces of any of the Members of the League which are co-operating to
protect the covenants of the League.
Any Member of the League which has violated any covenant of
the League may be declared to be no longer a Member of the League
by a vote of the Council conciured in by the Representatives of ail
the other Members of the League represented thereon.
Art. 17. In the event of a dispute between a Member of the League
and a State which is not a Member of the League, or between States
not Members of the League, the State or States not Members of the
League shall be invited to accept the obligations of membership in
the League for the purposes of such dispute, upon such conditions
as the Council may deem just. If such invitation is accepted, the
provisions of Articles 12 to 16 inclusive shall be applied with such
modifications as may be deemed necessary by the Council.
Upon such invitation being given the Council shall immediately
institute an inquiry into the circumstances of the dispute and recom-
mend such action as may seem best and most effectual in the circum-
stances.
If a State so invited shall refuse to accept the obligations of member-
APPENDIX XIII CXvii
ship in the League for the purposes of such dispute, and shall resort
to war against a Member of the League, the provisions of Article 16
shall be applicable as against the State taking such action.
If both parties to the dispute when so invited refuse to accept the
obligations of membership in the League for the purposes of such
dispute, the Council may take such measures and make such recom-
mendations as will prevent hostilities and will result in the settlement
of the dispute.
Art. 18. Every treaty or international engagement entered into
hereafter by any Member of the League shall be forthwith registered
with the Secretariat and shall as soon as possible be published by it.
No such treaty or international engagement shall be binding until so
registered.
Art. 19. The Assembly may from time to time advise the re-
consideration by Members of the League of treaties which have become
inapplicable and the consideration of international conditions whose
continuance might endanger the peace of the world.
Art. 20. The Members of the League severally agree that this
Covenant is accepted as abrogating all obligations or understandings
inter se which are inconsistent with the terms thereof, and solemnly
undertake that they will not hereafter enter into any engagements
inconsistent with the terms thereof.
In case any Member of the League shall, before becoming a Member
of the League, have undertaken any obligations inconsistent with the
terms of this Covenant, it shall be the duty of such Member to take
immediate steps to procure its release from such obligations.
Art. 21. Nothing in this Covenant shall be deemed to affect the
validity of international engagements, such as treaties of arbitration or
regional understandings like the Monroe doctrine, for securing the
maintenance of peace.
Art. 22. To those colonies and territories which as a consequence
of the late war have ceased to be under the sovereignty of the States
which formerly governed them and which are inhabited by peoples
not yet able to stand by themselves under the strenuous conditions of
the modem world, there should be applied the principle that the well-
being and development of such peoples form a sacred trust of civili-
sation and that securities for the performance of this trust should be
embodied in this Covenant.
The best method of giving practical effect to this principle is that
the tutelage of such peoples should be entrusted to advanced nations
CXVIU APPENDIX XIII
who by reason of their resources, their experience or their geograph-
ical position can best undertake this responsibility, and who are willing
to accept it, and that this tutelage should be exercised by them as
Mandatories on behalf of the League.
The character of the mandate must differ according to the stage of
the development of the people, the geographical situation of the ter-
ritory, its economic conditions and other similar circumstances.
Certain communities formerly belonging to the Turkish Empire
have reached a stage of development where their existence as inde-
pendent nations can be provisionally recognised subject to the render-
ing of administrative advice and assistance by a Mandatory until
such time as they are able to stand alone. The wishes of these com-
munities must be a principal consideration in the selection of the Man-
datory.
Other peoples, especially those of Central Africa, are at such a stag^
that the Mandatory must be responsible for the administration of the
territory under conditions which will guarantee freedom of conscience
and religion, subject only to the maintenance of public order and
morals, the prohibition of abuses such as the slave trade, the arms
traffic and the liquor traffic, and the prevention of the establishment
of fortifications or military and naval bases and of military training
of the natives for other than poUce purposes and the defence of terri-
tory, and will also secure equal opportunities for the trade and com-
merce of other Members of the League.
There are territories, such as South- West Africa and certain of the
South Pacific Islands, which, owing to the sparseness of their popula-
tion, or their small size, or their remoteness from the centres of civili-
sation, or their geographical contiguity to the territory of the Mandatory,
and other circumstances, can be best administered under the laws of
the Mandatory as integral portions of its territory, subject to the safe-
guards above mentioned in the interests of the indigenous population.
In every case of mandate, the Mandatory shall render to the Council
an annual report in reference to the territory committed to its charge.
The degree of authority, control, or administration to be exercised
by the Mandatory shall, if not previously agreed upon by the Mem-
bers of the League, be explicitly defined in each case by the Council.
A permanent Commission shall be constituted to receive and ex-
amine the annual reports of the Mandatories and to advise the Council
on all matters relating to the observance of the mandates.
Abt. 23. Subject to and in accordance with the provisions of inter-
APPENDIX XIII CXIX
national conventions existing or hereafter to be agreed upon, the Mem-
bers of the League :
(a) will endeavour to secure and maintain fair and humane con-
ditions of labour for men, women, and children, both in
their own countries and in all countries to which their
conmiercial and industrial relations extend, and for that pur-
pose will establish and maintain the necessary international
organizations ;
(b) undertake to secure just treatment of the native inhabitants
of territories under their control;
(c) will entrust the League with the general supervision over the
execution of agreements with regard to the traffic in women
and children, and the traffic in opium and other dangerous
drugs;
((Q will entrust the League with the general supervision of the
trade in arms and ammunition with the countries in which
the control of this traffic is necessary in the common in-
terest;
(e) will make provision to secure and maintain freedom of com-
munications and of transit and equitable treatment for the
commerce of all Members of the League. In this connection,
the special necessities of the regions devastated during the
war of 1914-1918 shall be borne in mind ;
(f) will endeavour to take steps in matters of international con-
cern for the prevention and control of disease.
Art. 24. There shall be placed under the direction of the League
all international bureaus already established by general treaties if
the parties to such treaties consent. All such international bureaus
and all conunissions for the regulation of matters of international in-
terest hereafter constituted shall be placed under the direction of the
League.
In all matters of international interest which are regulated by general
conventions but which are not placed under the control of international
bureaus or conmiissions, the Secretariat of the League shall, subject
to the consent of the Ck)uncil and if desired by the parties, collect and
distribute all relevant information and shall render any other assist-
ance which may be necessary or desirable.
The Council may include as part of the expenses of the Secretariat
the expenses of any bureau or commission which is placed under the
direction of the League,
CXX APPENDIX XIII
Art. 25. The Members of the League agree to encourage and pro-
mote the establishment and co-operation of duly authorized voluntary
national Red Cross organizations having as purposes the improvement
of health, the prevention of disease and the mitigation of suffering
throughout the world.
Art. 26. Amendments to this Ck)venant will take effect when
ratified by the Members of the League whose Representatives compose
the Council and by a majority of the Members of the League whose
Representatives compose the Assembly.
No such amendment shall bind any Member of the League which
signifies its dissent therefrom, but in that case it shall cease to be a
Member of the League.
ANNEX
I. OKGINAL MEAiBEBS OF THE LEAGUE OF NATIONS SIQNATOBIES
OF THE TBEATY OF PEACE
United States of America. Haiti.
Belgium. Hedjaz.
Bolivia. Honduras.
Brazil. Italy.
BRTnsH Empire. Japan.
Canada. Liberia.
Australia. Nicaragua.
South Africa. Panama.
New Zealand. Peru.
India. Poland.
China. Portugal.
Cuba. Roxtmania.
Ecuadob. Serb-Croat-Slovene State.
France. Slam.
Greece. Czecho-Slovakia.
Guatemala. Uruguay.
states invited to accede to the covenant
Argentine Repubuc.
Persia.
Chiu.
Salvador.
Colombia.
Spain.
APPENDIX XIII cxxi
Denmark. Sweden.
Netherlands. Switzerland.
Norway. Venezuela.
Paraouat.
n. fib8t secretary general of the league of nations
The Honourable Sir James Eric Drummond, K. C. M. G., C. B.
APPENDIX XIV
PERMANENT COURT OF INTERNATIONAL JUSTICE
(Statute approved by Assembly of League of Nations,
December 13, 1920,)
Statute for the Permanent Court op International
Justice provided for by Article 14 of the
f Covenant of the League op Nations
y Article 1. A Pennanent Court of International Justice is hereby
established, in accordance with Article 14 of the Covenant of the
League of Nations. This Court shall be in addition to the Court of
Arbitration organized by the Conventions of The Hague of 1899 and
1907, and to the special Tribunals of Arbitration to which States are
always at liberty to submit their disputes for settlement.
CHAPTER I. — Orqanization op the Court
Art. 2. The Permanent Court of International Justice shall be
composed of a body of independent judges, elected regardless of their
nationality from among persons of high moral character, who possess
the qualifications required in their respective countries for appoint-
ment to the highest judicial offices, or are jurisconsults of recognized
competence in international law.
Art: 3. The Court shall consist of fifteen menabers : eleven judges
and four deputy- judges. The number of jucigeiTand deputy-judges
may hereafter be increased by the Assembly, upon the proposal of
the Council of the League of Nations, to a total of fifteen judges and
six deputy-judges.
Art. ^- T*^*^ mfimhffrs eL^be Court shalJJje-idectedJjyJjiaAaiembly
and by the Council from a list of persons nominated by the national
groups in the Court of Arbitration, in accordance with the following
provisions. ^
In the case of Members of the League of Nations not represented
in the Permanent Court of Arbitration, the lists of candidates shall
cxxii
APPENDIX XIV cxxiii
be drawn up by national groups appointed for -this purpose by their
Governments under the same conditions ^ those prescribed for mem-
bers of the Permanent Court of^rbitration by Article "ff of the Con-
vention of The Hague of 1907 for the pacific settlement of international
disputes.
Art. 5. At least three months before the date of the election, the
Secretary General of the League of Nations shall address a written
request to the Members of the Court of Arbitration belonging to the
States mentioned in the Annex to the Covenant or to the States which
Join the League subsequently, and to the persons appointed under
paragraph 2 of Article 4, inviting them to undertake, within a given
time, by national groups, the nomination of persons in a position to
accept the duties of a member of the Court.
No^joup may nominate more than four peraqns, not more than
two of whom shall be of their own nationality. In no case must the
number of candidates nominated be more than double the number of
seats to be filled.
Art. 6. Before making these nominations, each national group
is reconunended to consult its Highest Court of Justice, its Legal
Faculties and Schoob of Law, and its National Academies and national
sections of International Academies devoted to the study of Law.
Art. 7. The Secretary General of the League of Nations shall
prepare a list in alphabetical order of all the persons thus nominated.
Save as provided in Article 12, paragraph 2, these shall be the only
persons eligible for appointment.
The Secretary General shall submit this list to the Assembly and
to the Council.
Art. 8. The Assembly and the Council shall proceed independ-
ently of one another to elect, firstly the judges, then the deputy-
judges.
Art. 9. At every election, the electors shall bear in mind that
not only should all the persons appointed as members of the Court
possess the qualifications required, but the whole body also should
represent the main forms of civilization and the principal legal systems
of the world.
Art. 10. Those candidates who obtain an absolute majority of
votes in the Assembly and in the Council shall be considered as elected.
In the event of more than one national of the same Member of the
League being elected by the votes of both the Assembly and the Coun-
cil, the eldest of these only shall be considered as elected.
CXldv APPENDIX XIV
Art. U. If, after the first meeting held for the purpose of the
election, one or more seats remain to be filled, a second and, if necessary,
a third meeting shall take place.
Art. 12. If, after the third meeting, one or more seats still remain
unfilled, a joint conference consisting of six members, three appointed
by the Assembly and three by the Council, may be formed, at any
time, at the request of either the Assembly or the Council, for the
purpose of choosing one name for each seat still vacant, to submit to
the Assembly and the Council for their respective acceptance.
If the Conference is unanimously agreed upon any person who fulfils
the required conditions, he may be included in its list, even though he
was not included in the list of nominations referred to in Articles 4
and 5.
If the joint conference is satisfied that it will not be successful in
procuring an election, those members of the Court who have already
been appointed shall, within a period to be fixed by the Council, pro-
ceed to fill the vacant seats by selection from among those candidates
who have obtained votes either in the Assembly or in the Council.
In the event of an equality of votes among the judges, the eldest
judge shall have a casting vote.
Art. 13. The members of the Court shall be elected for nine years.
They may be re-elected.
They shall continue to discharge their duties until their places have
been filled. Though replaced, they shall finish any cases which they
may have begun.
Art. 14. Vacancies which may occur shall be filled by the same
method as that laid down for the first election. A member of the
Court elected to replace a member whose period of appointment had
not expired will hold the appointment for the remainder of his pred-
ecessor's term.
Art. 15. Deputy-judges shall be called upon to sit in the order
laid down in a list.
This list shall be prepared by the Court and shall have regaord firstly
to priority of election and secondly to age.
Art. 16. The ordinary Members of the Court may not exercise
any political or administrative function. This provision does not apply
to the deputy-judges except when performing their duties on the Court.
Any doubt on this point is settled by the decision of the Court.
Art. 17. No member of the Court can act as agent, counsel or
advocate in any case of an international nature. This provision only
APPENDIX XIV cacxv
applies to the deputy-judges as regards cases in which they are called
upon to exercise their functions on the Court.
No member may participate in the decision of any case in which
he has previously taken an active part, as agent, counsel or advocate
for one of the contesting parties, or as a Member of a national or
international Court, or of a Commission of inquiry, or in any other
capacity.
Any doubt on this point is settled by the decision of the Court.
Art. 18. A member of the Court can not be dismissed unless, in
the unanimous opinion of the other members, he has ceased to fulfil
the required conditions.
Formal notification thereof shall be made to the Secretary General
of the League of Nations, by the Registrar.
This notification makes the place vacant.
Abt. 19. The members of the Court, when engaged on the business
of the Court, shall enjoy diplomatic privileges and immunities.
Abt. 20. Every member of the Court shall, before taking up his
duties, make a solemn declaration in open Court that he will exercise
his powers impartially and conscientiously.
Art. 21. The Court shall elect its President and Vice-President
for three years ; they may be re-elected.
It shall appoint its Registrar.
The duties of Registrar of the Coxui shall not be deemed incompatible
with those of Secretary General of the Permanent Court of Arbitration.
Art. 22. The seat of the Court shall be established at The Hague.
The President and Registrar shall reside at the seat of the Court.
Art. 23. A session of the Court shall be held every year.
Unless otherwise provided by rules of Court, this session shall begin
on the 15th of June, and shall continue for so long as may be deemed
necessary to finish the cases on the list.
The President may summon an extraordinary session of the Court
whenever necessary.
Art. 24. If, for some special reason, a member of the Court con-
siders that he should not take part in the decision of a particular case
he should so inform the President.
If the President considers that for some special reason one of the
members t)f the Court should not sit on a particular case, he shall give
him notice accordingly.
If in any such case the member of the Court and the President dis-
agree, the matter shall be settled by the decision of the Courts
CXXVl APPENDIX XIV
Abt. 25. The full Court shall sit except when it is expressly pro-
vided otherwise.
If eleven judges can not be present, the number shall be made up
by calling on deputy-judges to sit.
If, however, eleven judges are not available, a quorum of nine
judges shall suffice to constitute the Ck)urt.
Art. 26. Labor cases, particularly cases referred to in Part XIII
(Labor) of the Treaty of Versailles and the corresponding portion of
the other Treaties of Peace, shall be heard and determined by the Court
under the following conditions :
The Court will appoint every three years a special chamber of five
judges, selected so far as possible with due regard to the provisions of
Article 9. In addition, two judges shall be selected for the purpose
of replacing a judge who finds it impossible to sit. If the parties so
demand, cases will be heard and determined by this chamber. In
the absence of any such demand, the Court will sit with the number of
judges provided for in Article 25. On all occasions the judges will
be assisted by four technical assessors sitting with them, but without
the right to vote, and chosen with a view to insuring a just represen-
tation of the competing interests.
If there is a national of one only of the parties sitting as a judge in
the chamber referred to in the preceding paragraph, the President
will invite one of the other judges to retire in favor of a judge chosen
by the other party in accprdance with Article 31.
The technical assessors shall be chosen for each particular case in
accordance with rules of procedure imder Article 30 from a list of "As-
sessors for Labor cases" composed of two persons nominated by each
Member of the League of Nations and an equivalent number nomi-
nated by the Governing Body of the Labor Office. The Governing
Body will nominate, as to one half, representatives of the workers,
and as to one half, representatives of employers from the list referred
to in Article 412 of the Treaty of Versailles and the corresponding
Articles of the other Treaties of Peace.
In Labor cases the International Labor Office shall be at liberty to
furnish the Court with all relevant information, and for this piupose
the Director of that Office shall receive copies of all the written pro-
ceedings.
Art. 27. Cases relating to transit and communications, par-
ticularly cases referred to in Part XII (Ports, Waterways and Rail-
ways) of the Treaty of Versailles and the corresponding portions of
APPENDIX XIV CXXVii
the other Treaties of Peace shall be heard and determined by the Court
under the following conditions :
The Ck)urt will appoint every three years a special chamber of five
judges, selected so far as possible with due regard to the provisions
of Article 9. In addition, two judges shall be selected for the purpose
of replacing a judge who finds it impossible to sit. If the parties so
demand, cases will be heard and determined by this chamber. In
the absence of any such demand, the Court will sit with the number
of judges provided for in Article 25. When desired by the parties or
decided by the Court, the judges will be assisted by four technical
assessors sitting with them, but without the right to vote.
If there is a national of one only of the parties sitting as a judge
in the chamber referred to in the preceding paragraph, the Presi-
dent will invite one of the other judges to retire in favor of a judge
chosen by the other party in accordance with Article 31.
The technical assessors shall be chosen for each particular case in
accordance with rules of procedure under Article 30 from a list of
''Assessors for Transit and Communications Cases'' composed of
two persons nominated by each Member of the League of Nations.
Art. 28. The special chambers provided for in Articles 26 and 27
may, with the consent of the parties to the dispute, sit elsewhere than
at The Hague.
Art. 29. With a view to the speedy dispatch of business, the
Court shall form annually a chamber composed of three judges who,
at the request of the contesting parties, may hear and determine cases
by summary procedure.
Art. 30. The Court shall frame rules for regulating its procedure.
In particular, it shall lay down rules for suncimary procedure.
Art. 31. Judges of the nationality of each contesting party shall
retain their right to sit in the case before the Court.
If the Court includes upon the Bench a judge of the nationality of
one of the parties only, the other party may select from among the
deputy-judges a judge of its nationality, if there be one. If there
should not be one, the party may choose a judge, preferably from among
those persons who have been nominated as candidates as provided in
Articles 4 and 5.
If the Court includes upon the Bench no judge of the nationality
of the contesting parties, each of these may proceed to select or choose
a judge as provided in the preceding paragraph.
Should there be several parties in the same interest, they shall, for
CXXVIU APPENDIX XIV
the purpose of the preoeding provisions, be reckoned as one party
only. Any doubt upon this point is settled by the decision of the
Court.
Judges selected or chosen as laid down in paragraphs 2 and 3 of
this Article shall fulfil the conditions required by Articles 2, 16, 17.
20, 24, of this Statute. They shall take part in the decision on an
equal footing with their colleagues.
Art. 32. The judges shall receive an annual indemnity to be
determined by the Assembly of the licague of Nations upon the pro-
posal of the Ck)uncil. This indemnity must not be decreased during
the period of a judge's appointment.
The President shall receive a special grant for his period of office to
be fixed in the same way.
The Vice-President, judges and deputy-judges shall receive a grant
for the actual performance of their duties, to be fixed in the same
way.
Traveling expenses incurred in the performance of their duties shall
be refunded to judges and deputy-judges who do not reside at the seat
of the Court.
Grants due to judges selected or chosen as provided in Article 31
shall be determined in the same way.
The salary of the Registrar shall be decided by the Council upon
the proposal of the Court.
The Assembly of the League of Nations shall lay down, on the
proposal of the Council, a special regulation fixing the conditions
under .which retiring pensions may be given to the personnel of the
Court.
Art. 33. The expenses of the Court shall be borne by the League
of Nations, in such a manner as shall be decided by the Assembly upon
the proposal of the Council.
CHAPTER II. — Competence op the Court
Art. 34. Only States or Members of the League of Nations can
be parties in cases before the Court.
Art. 35. The Court shall be open to the Members of the League
and also to States mentioned in the Annex to the Covenant.
The conditions under which the Court shall be open to other States
shall, subject to the special provisions contained in treaties in force,
be laid down by the Council, but in no case shall such provisions nlace
the parties in a position of inequality before the Court,
APPENDIX XIV cxxix
When a State which is not a Member of the League of Nations Is
a party to a dispute, the Court will fix the amount which that party
is to contribute toward the expenses of the Court.
Art. 36. The jurisdiction of the Court comprises all cases which
the parties lefer to it and all matters specially provided for in Treaties
and Conventions in force.
The Members of the League of Nations and the States mentioned
in the Annex to the Covenant may, either when signing or ratifying
the protocol to which the present Statute is adjoined, or at a later
moment, declare that they recognize as compulsory, ipso facia and
without special agreement, in relation to any other Member or State
accepting the same obligation, the jurisdiction of the Court in all or
any of the classes of legal disputes concerning :
(a) The interpretation of a treaty.
(6) Any question of international law.
(c) The existence of any fact which, if established, would constitute
a breach of an international obligation.
(d) The nature or extent of the reparation to be made for the breach
of an international obligation.
The declaration referred to above may be made unconditionally or
on condition of reciprocity on the part of several or certain Members
or States, or for a certain time.
In the event of a dispute as to whether the Court has jurisdiction,
the matter shall be settled by the decision of the Court.
Art. 37. When a treaty or convention in force provides for the
reference of a matter to a tribunal to be instituted by the League of
Nations, the Court will be such tribunal.
Art. 38. The Court shall apply:
1. International conventions, whether general or particular, es-
tablishing rules expressly recognized by the contesting States ;
2. International custom, as evidence of a general practice accepted
as law;
3. The general principles of law recognized by civilized nations;
4. Subject to the provisions of Articl e 59, judicial decisions
and the teachings of the most highly qualified publicists of the va-
rious nations, as subsidiary means for the determination of rules of
law.
This provision shall not prejudice the power of the Court to decide
a case ex aequo el bonoy if the parties agree thereto.
CXXX APPENDIX XIV
CHAPTER III.— Procedure
Art. 39. The official languages of the Court shall be French and
English. If the parties agree that the case shall be conducted in
French, the judgment will be delivered in French. If the parties
agree that the case shall be conducted in English, the judgment will
be delivered in English.
In the absence of an agreement as to which language shall be em-
ployed, each party may, in the pleadings, use the language which it
prefers ; the decision of the Court will be given in French and English.
In this case the Court will at the same time determine which of the
two texts shall be considered as authoritative.
The Court may, at the request of the parties, authorize a language
other than French or English to be used.
Art. 40. Cases are brought before the Court, as the case may be,
either by the notification of the special agreement or by a written
application addressed to the Registrar. In either case the subject of
the dispute and the contesting parties must be indicated.
The Registrar shall forthwith communicate the application to all
concerned.
He shall also notify the Members of the League of Nations through
the Secretary General.
Art. 41. The Court shall have the power to indicate, if it con-
siders that circumstances so require, any provisional measures which
ought to be taken to reserve the respective rights of either party.
Pending the final decision, notice of the measures suggested shall
forthwith be given to the parties and the Council.
Art. 42. The parties shall be represented by Agents.
They may have the assistance of Counsel or Advocates before the
Court.
Art. 43. The procedure shall consist of two parts : written and oral.
The written proceedings shall consist of the communication to ,the
judges and to the parties of cases, counter-cases and, if necessary,
replies; also all papers and documents in support.
These communications shall be made through the Registrar, in
the order and within the time fixed by the Court.
A certified copy of every document produced by one party shall
be communicated to the other party.
The oral proceedings shall consist of the hearing by the Court of
witnesses, experts, agents, counsel and advocates.
APPENDIX XIV CXXXi
Art. 44. For the service of ail notices upon persons other than the
agents, counsel and advocates, the Court shall apply direct to the Gov-
ernment of the State upon whose territory the notice has to be served.
The same provision shall apply whenever steps are to be taken to
procure evidence on the spot.
Art. 45. The hearing shall be under the control of the President
or, in his absence, of the Vice-President ; if both are absent, the senior
judge shall preside.
Art. 46. The hearing in Court shall be public, unless the Court
shall decide otherwise, or unless the parties demand that the public
be not admitted.
Art. 47. Minutes shall be made at each hearing, and signed by
the Registrar and the President.
These minutes shall be the only authentic record.
Art. 48. The Court shall make orders for the conduct of the case,
shall decide the form and time in which each party must conclude its
arguments, and make all arrangements connected with the taking of
evidence.
Art. 49. The Court may, even before the hearing begins, call
upon the agents to produce any document or to supply any expla-
nations. Formal note shall be taken of any refusal.
Art. 50. The Court may, at any time, entrust any individual,
body, bureau, commission or other organization that it may select,
with the task of carrying out an inquiry or giving an expert opinion.
Art. 51. During the hearing any relevant questions are to be put
to the witnesses and experts under the conditions laid down by the
Coiurt in the rules of procedure referred to in Article 30.
Art. 52. After the Court has received the proofs and evidence
within the time specified for the purpose, it may refuse to accept any
further oral or written evidence that one party may desire to present
unless the other side consents.
Art. 53. Whenever one of the parties shall not appear before the
Court, or shall fail to defend his case, the other party may call upon
the Court to decide in favor of his claim.
The Court must, before doing so, satisfy itself, not only that it
has jurisdiction in accordance with Articles 36 and 37, but also that
the claim is well founded in fact and law.
Art. 54. When, subject to the control of the Court, the agents,
advocates and counsel have completed their presentation of the case,
the President shall declare the hearing closed.
CXXXii APPENDIX XIV
The Court shall withdraw to consider the judgment.
The deliberations of the Court shall take place in private and re-
main secret.
Art. 55. All questions shall be decided by a majority of the judges
present at the hearing.
In the event of an equality of votes, the President or his deputy
shall have a casting vote.
Art. 56. The judgment shall state the reasons on which it is based.
It shall contain the names of the judges who have taken part in the
decision.
Art. 57. If the judgment does not represent in whole or in part
the unanimous opinion of the judges, dissenting judges are entitled
to deliver a separate opinion.
Art. 58. The judgment shall be signed by the President and by
the Registrar. It shall be read in open Court, due notice having been
given to the agents.
Art. 59. The decision of the Court has no binding force except
between the parties and in respect of that particular case.
Art. 60. The judgment is final and without appeal. In the event
of dispute as to the meaning or scope of the judgment, the Court shall
construe it upon the request of any party.
Art. 61. An application for revision of a judgment can be made
only when it is based upon the discovery of some fact of such a nature
as to be a decisive factor, which fact was, when the judgment was
given, unknown to the Court and also to the party claiming revision,
always provided that such ignorance was not due to negUgenoe.
The proceedings for revision will be opened by a judgment of the
Court expressly recording the existence of the new fact, recognising
that it has such a character as to lay the case open to revision, and
declaring the application admissible on this ground.
The Court may require previous compliance with the terms of the
judgment before it admits proceedings in revision.
The application for revision must be made at latest within six months
of the discovery of the new fact.
No application for revision may be made after the lapse of ten years
from the date of the sentence.
Art. 62. Should a State consider that it has an interest of a legal
nature which may be affected by the decision in the case, it may sub-
mit a request to the Court to be permitted to intervene as a third party.
It will be for the Court to decide upon this request.
APPENDIX XIV CXXXUl
Art. 63. Whenever the construction of a convention to which
States other than those concerned in the case are parties is in question,
the Registrar shall notify all such States forthwith.
Every State so notified has the right to intervene in the proceedings ;
but if it uses this right, the construction given by the judgment will
be equally binding upon it.
Am*. 64. Unless otherwise decided by the Court, each party shall
bear its own costs.
APPENDIX XV
CRIMINAL CODE, 1909, CHAPTER 2^
Offsnses against Neutralitt
Sec. 9. Every citizen of the United States who, within the terri-
tory or jurisdiction thereof, accepts and exercises a commission to
serve a foreign prince, state, colony, district, or people, in war, by land
or by sea, against any prince, state, colony, district, or people, with
whom the United States are at peace, shall be fined not more than two
thousand dollars and imprisoned not more than three years.
Sec. 10. Whoever, within the territory or jurisdiction of the United
States, enlists, or enters himself, or hires or retains another person to
enlist or enter himself, or to go beyond the limits or jurisdiction of
the United States with intent to be enlisted or entered in the service
of any foreign prince, state, colony, district, or people, as a soldier, or
as a marine or seaman, on board of any vessel of war, letter of marque,
or privateer, shall be fined not more than one thousand dollars, and
imprisoned not more than three years.
Sec. 11. Whoever, within the territory or jurisdiction of the United
States, fits out and arms, or attempts to fit out and arm, or procures
to be fitted out and armed, or knowingly is concerned in the furnishing,
fitting out, or arming, of any vessel, with intent that such vessel shall
be employed in the service of any foreign prince or state, or of any
colony, district, or people, to cruise or conunit hostilities against the
subjects, citizens, or property of any foreign prince or state, or of any
colony, district, or people, with whom the United States are at peace,
or whoever issues or delivers a commission within the territory or
jurisdiction of the United States, for any vessel, to the intent that she
may be so employed, shall be fined not more than ten thousand dollars,
and imprisoned not more than three years. And every such vessel,
her tackle, apparel, and furniture, together with all materials, arms,
ammunition, and stores, which may have been procured for the build-
1 35 U. S. Stat. 1089.
cxxxiv
APPENDIX XV CXXXV
ing and equipment thereof, shall be forfeited; one half to the use of
the informer, and the other half to the use of the United States.
Sec. 12. Whoever, within the territory or jurisdiction of the United
States, increases or augments, or procures to be increased or augmented,
or knowingly is concerned in increasing or augmenting, the force of
any ship of war, cruiser, or other armed vessel, which, at the time of
her arrival within the United States, was a ship of war or cruiser or
armed vessel, in the service of any foreign prince or state or of any
colony^ district, or people, or belonging to the subjects or citizens of
any such prince or state, colony, district, or people, the same being
at war with any foreign prince or state or of any colony, district, or
people, with whom the United States are at peace, by adding to the
.number of the guns of such vessel or by changing those on board of
her for guns of a larger caliber or by adding thereto any equipment
)8olely applicable to war, shall be fined not more than one thousand
Idollars and imprisoned not more than one year.
I Sec. 13. Whoever, within the territory or jurisdiction of the United
States, begins or sets on foot, or provides, or prepares the means for,
any mihtary expedition or enterprise, to be carried on from thence
against the territory or dominions of any foreign prince or state, or of
any colony, district, or people, with whom the United States are
at peace, shall be fined not more than three thousand dollars and
imprisoned not more than three years.
Sec. 14. The district courts shall take cognizance of all complaints,
by whomsoever instituted, in cases of captures made within the waters
of the United States or within a marine league of the coasts or shores
thereof.
In every case in which a vessel is fitted out and armed, or attempted
to be fitted out and armed, or in which the force of any vessel of war,
cruiser, or other armed vessel is increased or augmented, or in which
any military expedition or enterprise is begun or set on foot, contrary
to the provisions and prohibitions of this Chapter; and in every case
of the captiu^ of a vessel within the jurisdiction or protection of the
United States as before defined; and in every case in which any process
issuing out of any court of the United States is disobeyed or resisted
by any person having the custody of any vessel of war, cruiser, or
other armed vessel of any foreign prince or state, or of any colony, dis-
trict, or people, or of any subjects or citizens of any foreign prince or
, state, or of any colony, district, or people, it shall be lawful for the
President, or such other person as he shall have empowered for that
CXXXVl APPENDIX XV
purpose, to employ such part of the land or naval forces of the United
States, or of the militia thereof, for the purpose of taking possession of
and detaining any such vessel, with her prizes, if any, in order to en-
force the execution of the prohibitions and penalties of this Chapter,
and the restoring of such prizes in the cases in which restoration shall
be adjudged; and also for the purpose of preventing the carrying on
of any such expedition or enterprise from the territories or jurisdiction
of the United States against the territory or dominion of any foreign
prince or state, or of any colony, district, or people with whom the
United States are at peace.
Sec. 15. It shall be lawful for the President or such person aa
he shall empower for that purpose, to employ such part of the land or
naval forces of the United States, or of the militia thereof, as shall be
necessary to compel any foreign vessel to depart the United States in
all cases in which, by the laws of nations or the treaties of the United
States, she ought not to remain within the United States.
Sec. 16. The owners or consignees of every armed vessel sailing
out of the ports of, or under the jurisdiction of, the United States,
belonging wholly or in part to citizens thereof, shall, before clearing
out the same, give bond to the United States, with sufficient sureties,
in double the amount of the value of the vessel and cargo on board,
including her armament, conditioned that the vessel shall not be em-
ployed by such owners to cruise or commit hostilities against the
subjects, citizens, or property of any foreign prince or state, or of any
colony, district, or people, with whom the United States are at peace.
Sec. 17. The several collectors of the customs shall detain any
vessel manifestly built for warlike purposes, and about to depart the
United States, or any place subject to the jurisdiction thereof, the
cargo of which principally consists of arms and munitions of war,
when the nimiber of men shipped on board, or other circimistances,
render it probable that such vessel is intended to be employed by the
owners to cruise or commit hostilities upon the subjects, citizens, or
property of any foreign prince or state, or of any colony, district or
people, with whom the United States are at peace, until the decision
of the President is had thereon, or until the owner gives such bond and
security as is required of the owners of armed vessels by the preceding
section.
Sec. 18. The provisions of this chapter shall not be construed to
extend to any subject or citizen of any foreign prince, state, colony,
district, or people who is transiently within the United States and
APPENDIX XV CXXXVll
enlists or enters himself on board of any vessel of war, letter of marque,
or privateer, which at the time of its arrival within the United States
was fitted and equipped as such, or hires or retains another subject or
citizen of the same foreign prince, state, colony, district, or people
who is transiently within the United States to enlist or enter himself
to serve such foreign prince, state, colony, district, or people on board
such vessel of war, letter of marque, or privateer, if the United States
shall then be at peace with such foreign prince, state, colony, district,
or people. Nor shall they be construed to prevent the prosecution or
punishment of treason, or of any piracy defined by the laws of the
United States.^
1 The British Foreign Enlistment Acts of 1819 and 1870 may be found
in 2 Lorimer, 476 et acq.
APPENDIX XVI
PROCEDURE IN PRIZE COURT
DISTRICT COURT OF THE UNITED STATES, SOUTHERN DIS-
TRICT OF FLORIDA
The United States v. Sir. X
Prize
UBEL
To the Honorable A. B., Judge of said Court.
The libel of C. D., Attorney of the United States, for the Southern
District of Florida, who libels for the United States and for all parties
in interest against the steam vessel X, in a cause of prize, alleges:
That pursuant to instructions for that purpose from the President
of the United States, W. M. of the United States Navy, in and with
the United States Commissioned ship of war, the N., her officers and
crew, did on the 22d day of April, in the year of our Lord One thousand
eight hundred and ninety-eight, subdue, seize, and capture on the
high seas, as prize of war, the said steam vessel X, and the said vessel
and her cargo have been brought into the port and harbor of Key
West, in the state of Florida, where the same now are, within the
jurisdiction of this Honorable Court, and that the same are lawful
prize of war and subject to condemnation and forfeiture as such.
Wherefore the said Attorney prays that the usual process of at-
tachment of Prize causes may issue against the said vessel her tackle,
apparel, furniture, and cargo, that Monition may issue citing aU per-
sons, having or claiming to have any interest or property in said Vessel
and cargo to appear and claim the same ; that the nature, amoimt, and
value may be determined; that due and proper proofs may be taken
and heard : and that all due proceedings being had, the said vessel X,
together with her tackle, apparel, furniture, and cargo may, on the
cxxxviii
APPENDIX XVI CXXXIX
final hearing of this cause, by the definitive sentence of this Court be
condemned, forfeited, and sold, and the proceeds distributed accord-
ing to law. C. D.
U. S. Attorney, So. Dist. of Florida.
Key West, Fla., April 23d, 1898.
Let attachment and monition issue as prayed returnable on Mon-
day the 9th day of May, 1898.
Entered as of course.
E. F., Clerk,
by G. H., Dy. Clerk.
Endorsed :
Libel for Prize.— Filed Apr. 23d, 1898. E. F., Clerk.
• claimants' petition
To the Honorable A. B., Judge of the District Court of the United
States in and for the Southern District of Florida, in admiralty.
The United States v. The S. S. X and cargo
Prize
And now comes into Court, I. J., and says that he is a citizen of
Mobile, Ala., and agent in the United States for the firm of P. k P.
of London, England, and that about 400,000 feet of pine lumber, being
about one half of the cargo, is the sole and exclusive property of the
said firm of P. & P., of London, England, and of no other person or
persons, and that no person or persons whomsoever, enemies of the
United States, have any right, title, or interest whatever in and to said
cargo or any part thereof.
That the said firm consists solely of [names] who are subjects of
Great Britain, residing at London, England.
And he further denies that the said cargo is lawful prize of war as
alleged and set forth in the captor's Ubel exhibited and filed in this
cause.
Now therefore, the said I. J., comes into Court and claims the right
to the possession of the said portion of the said cargo for the said
firm of P. & P., and prays that upon a hearing of this cause the Court
will award to them restitution thereof free from charges for costs and
expenses, and of such other and further relief in the premises as is
right and just, and he will ever pray, etc.
I. J.J Aqent for P, A P.
Cxl APPENDIX XVI
I. J.| being duly sworn, deposes and says that he is the authorixed
agent in the United States of said P. & P. of London, where all the
members of the firm are and reside ; that he knows the contents of the
foregoing claim; that the « matters and allegations therein contained
are true as therein set forth; and that his knowledge of said matters is
absolute and acquired by means of his agency in the United States
for the said P. & P. and by reason of his connection with the shipment
of the said cargo. j^ j^
Sworn to and subscribed before me this 2nd day of May, 1898.
[seal] K. L., Clerk of the United States District Court for the
Southern District of Alabama. M. N.
Proctor for Claimant,
Endorsed:
Claim for one half Cargo.— Filed May 6th, 1898,
E. O., Clerk.
(Another claim for the other half was filed by another claimant.)
At a stated term of the District Court of the United States, for the
Southern District of Florida, held in the United States Court Rooms
at Key West, on the day of May, 1898.
Present: —
Honorable A. B., District Judge.
pETmoN OF Bailee of Owners of Vessel
The United States v. The Steamship X and her cargo
And now O. P., intervening as bailee for the interest of [names] in
the said Steamship X, her engines, boilers, tackle, apparel, furniture
and equipment, appears before this Honorable Court and makes claim
to the said steamship, etc., as the same are attached by the Marshal,
under process of this Court, at the instance of the United States of
America, under a libel against said steamship, her cargo, etc., as a
prize of war, and the said O. P. avers that before and at the time
of the alleged capture of said steamship, her cargo, etc., the above
named [names], residing in England, and [names] residing in Spain,
all of whom are Spanish subjects, were true and bona fide owners of the
said vessel, her engines, boilers, tackle, apparel and furniture; that
no other person was the owner thereof, that he was in possession
thereof for the said owners, and that the vessel, if restored, will belong
to the said owners, and he denies that she was lawful prize.
APPENDIX XVI cxli
Wherefore the said O. P., for and in behalf of the said owners, for
whom he is duly authorized to make this claim, prays to be admitted
to defend accordingly, and to show cause pursuant to the terms of the
monition issued herein and served upon the said steamship, and upon
the master thereof, as bailee, why the said steamship, her engines, etc.,
were not liable to be treated enemy's property at the time and place,
and under the circumstances of the alleged capture, and why she should
not be condemned as lawful prize of war, but should be restored with
damages and costs. q^ p^
Sworn to before me this 18th day of May, 1898.
fsBAL] G. H., Dy. Clerk. Q. R.
Proctor for Claimard,
Endorsed:
Claim to X by O. P. Q. R., Proctor for Ctoiman/.— Filed May 18th,
1898. E. F., CUrk.
U. S. DISTRICT COURT, SOUTHERN DISTRICT OF FLORIDA
The United States v. The Steamship X and her cargo
Test Affidavit
Southern District of Florida, S.S.
0. P. being duly sworn, deposes and says : —
1. I am the claimant herein and have verified the claim on knowl-
edge derived from my position as master of the vessel about three
and a half years and from my official communications with the ship
owners and their representatives; the names and residences of the
part owners I have learned since my examination in preparatoriOf from
cables to my counsel to the said owners.
2. The X is a Spanish merchant vessel, and since I have been in com-
mand of her as aforesaid has traded between ports in England and
Spain and the United States and West Indies; the vessel carries no
passengers or mails, but is exclusively a cargo carrier.
3. In the ordinary course of her said business as a common carrier,
the vessel, in the month of April, 1898, loaded a full cargo of lumber,
at Ship Island, Miss., and on the 14th of April, 189H, the vessel and
cargo were cleared at the Custom House in Scranton, Miss. The cargo
was destined for Rotterdam, in the Kingdom of Holland, but the ves-
sel was cleared coastwise from Scranton for Norfolk, in the State of
Cxlii APPENDIX XVI
Virginis, to which port the steamer was bound for coals. In the
ordinary course of such a voyage the foreign clearance of a vessel for
Rotterdam would have been obtained and issued from the Custom
House in Norfolk.
The vessel was laden at the loading port under the agency of W. S.
K. & Co., an American firm as I am informed and believe, and con-
formed there in all things to the laws and regulations of the United
States and of said port. She was detained at Ship Island by the low
water on the bar until April Idth, 1898, between 8 and 9 o'clock a.m.,
when she sailed from said place and proceeded on her voyage toward
Norfolk, Va., as aforesaid.
But for her capture and detentions as heretofore set forth, she would
have reached Norfolk, and would have coaled and sailed from said
port prior to May 2l8t, 1898.
4. It appeared from the ship's papers delivered to the captors, and
was a fact, that her cargo was all taken on board prior to May 21st,
1898. And as I am informed and believe, the vessel was not otherwise
excluded from the benefits and privileges of the President's Proclama-
tion of AprU 26th, 1898.
5. At all times before the ship's seizure on April 22d, 1898, I and
all my officers were ignorant that war existed between Spain and the
United States, and the vessel was bound and following the ordinary
course of her voyage.
6. While on the said voyage and in due prosecution thereof, at about
7 or 7.30 of the clock in the morning of April 22d, 1898, said steamship
X being then about eight or nine miles from Sand Key Light, was
seized and wrongfully captured by the United States ship of war N.,
under the conmiand of a line officer of the United States Navy, and
by means of a prize crew then and there placed on board, was forcibly
brought into this port of Key West. On being stopped by said United
States ship of war, N., and being informed of the existence of war, the
master and officers of the X submitted without resistance to seizure
and to the placing of a prize crew on board of said vessel, proceeding
therewith, imder her own steam, into port.
7. Deponent is informed and believes that by the existing policy
of the Government of the United States, as evidenced by the repeated
declarations of' its Executive, and by the Proclamation of the Presi-
dent of the United States, issued and published April 26th, 1898, as
well as upon principles in harmony with the present views of nations
and sanctioned by recent practice, in accordance with which the Free-
APPENDIX XVI CXliii
Ident has directed that the war should be conducted, the steamship
X, at the time and place, and in the circumstances under which she
was seized, was not liable to be treated as enemy's property, but on
the contrary, having sailed from a port of the United States prior to
the 21st of April, 1898, and being bound to another port of the United
States, which in the ordinary course of her voyage she would have
reached and left, with her coals, long prior to May 21st, 1898, was
exempt from capture as prize of war.
O. P.
Sworn to before me this 18th day of May, 1898.
[seal] G. H., Dy. Clerk.
Endorsed:
Test affidavit for X.— Filed May 16th, 1898. E. F., Clerk.
IN THE DISTRICT COURT OF THE UNITED STATES,
SOUTHERN DISTRICT OF FLORIDA
United Stales v. Spanish Steamer X and Cargo
Prize. Decree
This cause having come on to be heard upon the allegations of the
libel, the claims of the master, and testimony taken in preparatorioy and
the same having been fully heard and considered, and it appearing to the
Court that the said steamer X was enemy's property, and was upon
the high seas and not in any port or place of the United States upon
the outbreak of the war, and was liable to condemnation and seizure,
it is ordered that the same be condemned and forfeited to the United
States as lawful prize of war; but it appearing that the cargo of said
steamer was the property of neutrals, and not contraband or subject
to condemnation and forfeiture, it is ordered that said cargo be released
and restored to the claimants for the benefit of the true and lawful
owners thereof.
It is further ordered that the Marshal proceed to advertise and scli
said vessel, and make deposit of the proceeds in accordance with law.
A. B., Judge.
Key West, Florida, May 27th, 1898.
Endorsed :
Decree.— Filed May 27th, 1898, E. F., Clerk.
Cxliv APPENDIX XVI
*
FORM OF DECREE OF DISTRIBUTION
DISTRICT COURT OF THE UNITED STATES, SOUTHERN
DISTRICT OF FLORIDA
The United StaUa Prizs
V. Captured, 1898
A Final Decree of Condemnation of Vessel and Cargo having been pro-
nounced in this Case, and no Appeal being taken, and it Appearing to the
Court that the Gross Proceeds of the Sales are as follows, — to-wit, —
Vessel,
Cargo,
Total,
And the Costs, Expenses and Charges as taxed and allowed are as follows,—
Marshal's Fees and Charges including all expenses of Sales, Advertising,
and Auctioneer's Commissions,.
District Attorney's Fees,
Prize Commissioner's Fees and Ebq)ense8»
Gerk's Fees,
Leaving a Net Residue of ($ )
And it appearing to the Court upon the Report of the Price Commiasionier,
that the U. S. S
Commanding, was the sole Capturing Vessel, and entitled to share in the
Prize, and was of Superior Force to the Captured Vessel, and it appearing
that the Marshal has paid and satisfied the Bills of Costs and Chaiges as
herein taxed, and allowed, it is Ordered that the same be paid to him out
of the money on Deposit with the Assistant Treasurer of the United States
subject to the Court in this case, and it is Further Ordered that the said
Residue of the Gross Proceeds deposited with the Assistant Treasurer in
this Case be paid into the Treasury of the United States, for Distribution,
one half to the officers and crew of said and one half to the United
States.*
Jvdge of ike District Court of the United States,
for the Southern District of Florida.
> See U. S. Statute cited in Sec. 141 (c), p. 344.
APPENDIX XVII
DIGEST OF IMPORTANT CASES ARRANGED
UNDER TITLES
16. Precedent and DEasiONS
BoUUm V. Gladstone, 5 East, 155
In an action on a policy of insurance in 1804 on a Danish ship and
cargo warranted neutral and captured by a French ship of war (Den-
mark being at peace with France), it appeared that the court in which
the Danish ship was libeled declared her good and lawful prize. Held
by Ellenborough C. J., ''that all sentences of foreign courts of compe-
tent jurisdiction to decide questions of prize" were to be received "as
conclusive evidence in actions upon policies of assurance, upon every
subject immediately and properly within the jurisdiction of such for-
eign courts, and upon which they have professed to decide judiciaUy.''
United States v. Rauscher, 119 U. S. 407
The defendant was extradited from England on the charge of mui^
der committed on an American vessel on the high seas. He was in-
dicted in the United States Circuit Court, not for murder, but for a
minor offense not included in the treaty of extradition. It was held
that he could not be tried for any other offense than murder until he
had had an opportunity to return to the coimtry from which he was
taken for the purpose alone of trial for the offense specified in the
demand for his surrender.
22. Recognition of New States
Harcowi v. Gaillard, 12 Wheat. 523
This case is fully stated in the text, p. 47.
Williams v. The Suffolk Insurance Company, 13 Pet. 415
This case held that when the executive branch of the government,
which is charged with the foreign relations of the United States shall,
cxlv
Cxlvi APPENDIX XVll
in its correspondence with a foreign nation, assume a fact in regard
to the sovereignty of any island or country, it is conclusive on the
judicial department.
State of Mississippi v. Johnson, 4 Wall. 475, 501
This case held that ''a bill praying an injunction against the execu-
tion of an act of Congress by the incumbent of the presidential office
cannot be received, whether it describes him as President or as a
citizen of a state."
Jones V. United States, 137 U. S. 202
This case held that the determination of the President, under U. S.
Rev. Sts., § 5570, that a guano island shall be considered as apper-
taining to the United States, may be declared through the Department
of State, whose acts in this regard are in legal contemplation the acts
of the President.
56. Vessels
Wildenhus's Case, 120 U. S. 1
This case held that the Circuit Court of the United States has juris-
diction to issue a writ of habeas corpus to determine whether one of the
crew of a foreign vessel in a port of the United States, who is in the
custody of the state authorities, charged with the commission of a
crime, within the port, against the laws of the state, is exempt from
local jurisdiction imder the provisions of a treaty between the United
States and the foreign nation to which the vessel belongs. The Con-
vention of March 9, 1880, between Belgium and the United States was
considered.
67. Extradition
In the Matter of Metzger, 5 How. 176, 188
•
This case held that the Treaty with France of 1843 provides for the
mutual surrender of fugitives from justice and that where a district
judge decided that there was sufficient cause for the surrender of a
person claimed by the French Government, and committed him to
'lustody to await the order of the President of the United States, the
Supreme Court had no jurisdiction to issue a habeas corpus for the
purpose of reviewing that decision.
APPENDIX XVII cxlvii
103. NONCOMBATANTS
Alcifums V. Niffreu, 4 Ellis and Blackburn, 217
This was an action for work and labor brought by a Russian against
an Englishman during the Crimean war. Lord Campbell said: ''The
contract having been entered into before the commencement of hostil-
ities is valid; and, when peace is restored, the plaintiff may enforce it
in our Courts. But, by the law of England, so long as hostilities pre-
vail he cannot sue here."
106. Personal Profertt of Enemy Subjects
Brown v. United States, 8 Cr. 110
It was held that British property within the territory of the United
States at the beginning of hostilities with Great Britain could not be
condemned without a legislative act, and that the act of Congress de-
claring war was not such an act. The property in question was the
cargo of an American ship and was seized as enemy's property in 1813,
nearly a year after it had been discharged from the ship.
112. Prfvateers
United States v. Baker, 5 Blatchford, 6
This was an indictment in 1861 against Baker, the master of a pri-
vate armed schooner, and a part of the officers and crew for piracy.
They claimed to have acted under a commission from Jefferson Davis,
President of the Confederate States of America. Nelson J. charged
the jury at length; but they failed to agree on a verdict.
114. Capture and Ransom
The Grotius, 9 Cr. 368
The question in thb case, which was heard in 1815, was whether
the capture was valid. The master, the mate, and two of the seamen
swore that they did not consider the ship to have been seized as prize,
and that the young man who was put on board by the captain of the
privateer was received and considered as a passenger during the resi-
due of the voyage. It was held that the validity of the capture of the
vessel as a prize of war was sufficiently established by the evidence.
Gxlviii APPENDIX xvn
115. Postliminium
The Two Friends, 1 C. Rob. 271
An American ship was taken by the French in 1799 when the rela«
tions between France and America were strained. She was recap-
tured by the crew, some of whom were British seamen. They were
awarded salvage.
The Santa Cruz, 1 C. Rob. 49
A Portuguese vessel was taken by the French in 1796 and retaken
by English cruisers a few days later. It was held that the law of Eng-
land, on recapture of property of allies, is the law of reciprocity; it
adopts the rule of the country to which the claimant belongs.
117. NoN-HOSTiLE Relations of Beluoerentb
The Venus, 4 C. Rob. 355
A British vessel went to Marseilles, under cartel, for the exchange
of prisoners, and there took on board a cargo and was stranded and
captured on a voyage to Port Mahon. Held that the penalty was
confiscation.
The Sea Lion, 5 Wall. 630
This case held that a license from a "Special Agent of the Treasury
Department and Acting Collector of Customs ** in 1863 to bring cotton
" from beyond the United States military lines " had no warrant from
the Treasury Regulations prescribed by the President conformably to
the act of 13th July, 1861.
121. Termination of War by Treaty of Peace
The Schooner Sophie, 6 C. Rob. 138
A British ship, having been captured by the French, was condemned
in 1799 by a French Consular Court in Norway. Other proceedings
were afterwards had, on former evidence in the case, in the regular
Court of Prize in Paris and the sentence of the Consular Court was af-
firmed. Sir William Scott said: "I am of opinion, therefore, that the
intervention of peace has put a total end to the claim of the British
proprietor, and that it is no longer competent to him to look back to
the enemy's title, either in his own possession, or in the hands of neu-
tral purchasers.'
ft
APPENDIX XVII Cxlix
128. Nbutral Territorial Jurisdiction
The Caroline; People v. McLeod, 25 Wendell, 483
During the Canadian rebellion of 1837-1838, a British force crossed
the Niagara River into American jurisdiction and destroyed the
American vessel Caroline, which was engaged in transporting men
and supplies to the insurgents. One Durfee, an American, was killed.
The United States protested against the violation of her jurisdiction
but the British government contended that the seizure of the Caroline
was excusable on the ground stated by Mr. Webster himself as '' a
necessity of self-defense, instant, overwhelming, leaving no choice
of means and no moment for deliberation." The controversy was
renewed by the arrest, in 1841, in the State of New York, of one Mc-
Leod, and his indictment for the murder of Durfee. Great Britain
demanded the release of McLeod, stating that as he was an agent of
the British Government engaged at the time in a public duty, he could
not be held amenable to the laws of any foreign jurisdiction. Mr.
Webster, then Secretary of State, admitted the correctness of the
British contention, but seemed powerless to obtain the release of
McLeod, on account of the inherent weakness of the Federal system.^
The Supreme Court of the State of New York held, in People v. Mc-
Leod, that McLeod could be proceeded against individually on an
indictment for arson and murder, though his acts had been subsequently
averred by the British Government. This view was generaUy con-
demned by jurists;' but the difficulty soon ended by the acquittal of
McLeod.
The Appam, 37 S. Ct. 337
In 1916, the Appam, a captured British vessel, was brought into an
American port by a German prize crew for sequestration during the
war. The American court assumed jurisdiction and decreed restora-
tion to the British owners, saying: " The principles of international
law recognized by this government . . . will not permit the ports of
the United States to be thus used by belligerents. . . . The violation
of American neutrality is the basis of jurisdiction, and the admiralty
coiu*ts may order restitution for a violation of such neutrality."
The Twee Gehroeders, 3 C. Rob. 162
This case holds that a ship within three miles of neutral territory
cannot send boats beyond the line of division for the purpose of cap-
turing enemy vessels.
» See 2 Moore, pp. 25 ff. * See Jhid,, p. 26.
d APPENDIX XVII
131. PosmvE Obligations of a Neutral State
The Alabama Cases
Up to the period of the American civil war the opinion obtained
among many that a vessel of war might be sent to sea from a neutral
port with the sole liability to capture as legitimate contraband, ^ith
the exception that, if she was ready to go in condition for immediate
warlike use, it was the duty of the neutral to prevent her departure.
In 1863 during the American civil war this view was practically taken
by the British court in the case of the Alexandra; * but the vessel after
her release was taken on a new complaint at Nassau and held until
after the end of the war. Lawrence says that the attitude of the Brit-
ish Government in regard to this vessel, its purchase in 1863 of two
iron-clad rams of the Messrs. Laird for the navy, the construction, des-
tination, and intended departure of which occasioned the now famous
correspondence between Lord Russell and Mr. Adams, the detention
of the Pampero, which was seized in the Clyde, until the end of the
American civil war, and the preventing the sale of ''Anglo-Chinese
gunboats against the advice of its own law officers," indicated that
that government "had uneasy doubts as to the validity of the doc-
trine laid down in their law-courts and maintained in their dispatches." *
This doctrine would admit of a ship of war going to sea from a neutral
port without arms, which she might receive on the high seas from an-
other vessel which had sailed from the same port. For example, the
Alabama left Liverpool in 1862 ready for warlike use, but without war-
like equipment. This and her crew were received on the high seas
from other vessels which had cleared from Liverpool; and her career
as a Confederate cruiser then began. The cases of the Florida, the
Georgia, and the Shenandoah were almost identical. The spoliations
committed by these vessels led to the Alabama claims, the British
maintaining that the American contention that it was the duty of a
neutral to prevent the departure of all vessels that could reasonably
be expected as about to be used for warlike purposes was unsound.'
The Alabama case and kindred cases have produced much specula-
' Attorney Genl i;. Sillem et als, 2 Hurlstone v. Coltman, Exchequer
Reports, 431.
'Page 544. For the cases of the ''Pampero" and the two iron-clad
rams, see Wheat. D., note p. 572 et sea.
•The American view may be founa in Cushing's "Treaty of Washing-
ton," and the British in Bernard's "Historical Account of the Neutrality
of Great Britain during the American Civil War."
APPENDIX XVII Cli
tion as to the establiahment of a true and correct rule. After the en-
actment of the American neutrality statutes in 1818, there were numer-
ous decisions of the United States courts to the effect that the intent
was to govern, that is, if the purpose was to send articles of contra-
band, with the risk of capture, to a beUigerent's country for sale, the
neutral government had nothing to say, but if the purpose was to
send out a vessel to prey on the commerce of a friendly power, then
the neutral government should prevent her departure. It must be
admitted that the rule is hardly satisfactory.*
Hall contends that the true test should be ''the character of the ship
itself." If built for warUke use, the vessel should be detained; if for
commercial purposes, she should be allowed to depart. This rule has
at least one element of fairness and sense. It is not always possible
to get at intent, but the character of the vessel is likely to reward
observation and scrutiny.'
Regret has been expressed by many writers that the award of the
arbitrators appointed under the Treaty of Washington of 1871, upon
the Alabama claims, has proved of so little value as a precedent upon
the liability of a neutral power for the departure from its ports of ves-
sels fitted out and equipped for the destruction of belligerent com-
merce.
Article VI of the Treaty provided that the Arbitrators should be
"governed by the following three rules, which are agreed upon by the
high contracting parties as rules to be taken as applicable to the case,
and by such principles of international law not inconsistent therewith
as the Arbitrators shall determine to have been applicable to the case.
" A neutral Government is bound —
"First to use due diUgence to prevent the fitting out, arming, or
equipping, within its jurisdiction, of any vessel which it has reasonable
ground to believe is intended to cruise or to carry on war against a
Power with which it is at peace ; and also to use like diligence to pre-
vent the departure from its jurisdiction of any vessel intended to cruise
or carry on war as above, such vessel having been specially adapted,
in whole or in part, within such jurisdiction, to warlike use.
"Secondly, not to permit or suffer either belligerent to make use
of its ports or waters as the base of naval operations against the other,
or for the purpose of the renewal or augmentation of military supplies
or arms, or the recruitment of men.
"Thirdly, to exercise due diligence in its own ports and waters, and,
1 See Wheat. D., note p. SSSetaeq. ' Hall, p. 612.
ciii APPENDIX xvn
as to all persons within its jurisdiction, to prevent any violation of the
foregoing obligations and duties/'
The British Government declared that it " cannot assent to the fore-
going rules as a statement of principles of international law which were
in force at the time when the claims mentioned" arose but ''in order
to eviaoe its desire of strengthening the friendly relations between the
two countries and of making satisfactory provision for the future,
agrees that in deciding the questions between the two countries arising
out of those claims, the Arbitrators should assimie that her Majesty's
Government had undertaken to act upon the principles set forth in
these rules.
'* And the high contracting parties agree to observe these rules as
between themselves in the future, and to bring them to the knowl-
edge of other maritime Powers, and to invite them to accede to
them." *
The phrases "due diligence" and "base of naval operations" gave
rise to a difference of opinion, as also the last part of paragraph ** First "
relative to preventing the departui;p of vessels intended to carry on war
and adapted for warlike use.
The contentions and the decision relative to the last point were as
follows:
1. The British Contention
This was that the only duty of Great Britain applied to the departure
of the vessel originally, and that, if she escaped, and afterwards as a
duly commissioned war-ship entered a British port, there was no obli-
gation to detain her.' The case of the Schooner Exchange v. M'Fad--
don *'was cited, in which a libel was filed in 1811 against that vessel,
then in American waters, as an American vessel unlawfully in the
custody of a Frenchman, the libelants contending that in December,
1810, while pursuing her voyage she had been forcibly taken by a
French vessel at sea. The Attorney General suggested that she was a
public armed vessel of France, visiting our watcgrs as a matter of neces-
sity. Chief Justice Marshall decided that as a public vessel of war com-
ing into our ports and demeaning herself in a friendly manner she was
exempt from the jurisdiction of the country.
1 U. S. Treaties, 481.
'Argument of Sir R. Palmer in the ''Argument at Geneva," published
by the United States at p. 426 et seq,
• 7 Cranch, 116.
APPENDIX XVII diii
2. The American Contention
This was that if a Confederate cruiser, which had originally escaped,
afterwards came into a British port, her commission was no protection,
as it was given by a government whose belligerency only, not sover-
eignty, had been acknowledged.'
3. The Award of the Tribunal
This award exceeded the claim of the United States in deciding that
"the effects of a violation of neutrality committed by means of the
construction, equipment and armament of a vessel are not done away
with by any commission which the Government of the belligerent
power, benefited by the violation of neutrality, may afterwards have
granted to that vessel; and the ultimate step, by which the offense
is completed, cannot be admissible as a ground for the absolution of
the offender, nor can the consummation of his fraud become the means
of establishing his innocence," that ''the privilege of extraterritoriality
accorded to vessels of war has been admitted into the law of nations,
not as an absolute right, but solely as a proceeding founded on the prin-
ciples of courtesy and mutual deference between different nations, and
therefore can never be appealed to for the protection of acts done in
violation of neutrality," and that "the absence of a previous notice
cannot be regarded as a failure in any consideration required by the
law of nations, in those cases in which a vessel carries with it its own
condemnation." '
That the decision of the Tribunal has not become a precedent is
quite generally conceded. Lawrence asserts that the award seems " to
have been dictated more by a regard for equitable considerations than
by reference to principles hitherto accepted among nations " ; that otlier
nations have refused to accede to the "three rules" and "that it has
been doubted whether they bind the two powers which originally con-
tracted to observe them." *
It is to be observed, however, that at the present time a cruiser is
of such peculiar construction and depends for her efficiency on such a
large outlay of money that an honest neutral is likely to have abundant
proof of her character and hence the best reasons for detaining her.
* Argument of Mr. Evarts in "Argument at Geneva/' p. 448 et 8eq.
' Decision and Award of the Tribunal of Arbitration in 3 Wharton, § 402 a,
' Pp. 553, 554.
Cliv APPENDIX XVII
133. Contraband
The Peterhoff, 5 WaU. 28, 62
The Peterfioff, a British steamer, bound from London to Matamoras
in Mexico, was seized in 1863 by a United States vessel. It was held
that the mouth of the Rio Grande was not included in the blockade
of the ports of the Confederate states; that neutral commerce with
Matamoras, a neutral town on the Mexican side of the river, except in
contraband destined to the enemy, was entirely free; and that trade
between London and Matamoras, even with intent to supply, from
Matamoras, goods to Texas, then an enemy of the United States, was
not unlawful on the ground of such violation. Questions of contra-
band were also considered, and Chief Justice Chase concluded: "Con-
sidering . . . the almost certain destination of the ship to a neutral
port, with a cargo, for the most part, neutral in character and destina-
tion, we shall not extend the effect of this conduct of the captain to
condemnation, but we shall decree payment of costs and expenses by
the ship as a condition of restitution."
The Cammercen, 1 Wheat. 382
In 1814, during the war between the United States and Great Brit-
ain, a Swedish vessel bound from Limerick, Ireland, to Bilboa, Spain,
with cargo of barley and oats, the property of British subjects, was
seized and brought into an American port. The cargo was shipped
for the sole use of the British forces in Spain. The cargo was con-
demned.
134, Penalty for Carrying Contraband
The Jonge Tobias, 1 C. Rob. 329
This was a case of a ship taken on a voyage from Bremen to Rochelle,
laden with tar. The ship was claimed by one Schraeder and others.
Schraeder, who was owner of the cargo, withheld his claim, knowing
it would affect the sMp. The cargo and his share of the vessel were
condemned in 1799, and an attestation was required of the other part
owners of the vessel that they had no knowledge of the contraband
goods.
APPENDIX XVII dv
The Magnus, 1 C. Rob. 31
A skip laden with coffee and sugars was taken on a voyage from
Havre to Genoa. The claimant of the cargo was a Swiss merchant.
Held, that while interior countries are allowed to export and import
through an enemy's ports, strict proof of property is required. The
cargo was condemned.
135. Unneutral Service
The Kaw-Shing Affair, Takahashi, 24-51
On July 25, 1894, a Japanese war-ship stopped the KovhShing, a
British transport engaged in carrying Chinese troops. After fruitless
parleying, the Kaw-Shing refusing to surrender as her British captain
was overawed by the Chinese he was carrying, the Kow-Shing was sunk
by the Japanese war-ship. The affair produced great excitement in
England, and there was a demand of satisfaction from Japan on the
ground that war had not been declared between that country and
China. The facts appearing that a declaration of war is not necessary,
and that the British captain of the transport was under compulsion,
the affair was referred to Mr. Choate, the American Ambassador to
Great Britain, as referee.
The Friendship, 6 C. Rob. 420, 429
This was the case of an American ship boimd on a voyage from Bal-
timore to Bordeaux, with a light cargo and ninety French mariners as
passengers, shipped by direction of the French minister in America. In
condemning the ship and cargo in 1807, Sir William Scott said: ''It is
the case of a vessel letting herself out in a distinct manner, under a
contract with the enemy's government, to convey a number of persons,
described as being in the service of the enemy, with their military char-
acter traveling with them, and to restore them to their own country
in that character."
The Orozembo, 6 C. Rob. 430
An American vessel, having been ostensibly chartered by a mer-
chant at Lisbon " to proceed in ballast to Macao, and there to take a
cargo to America," was afterwards, by his directions, fitted up for
civi APPENDIX XVII
three military officers and two persons in civil departments in the
government of Batavia, who had come from Holland to take their
passage to Batavia, under the appointment of the Government of
Holland. The vessel was condemned in 1807 as a transport, let out
in the service of the government of Holland.
The AUdarUa, 6 C. Rob. 440
A Bremen ship and cargo were captured on a vo3rage from Batavia
to Bremen, in July, 1807 having come laist from the Isle of France,
where a packet, containing dispatches from the government of the
Isle of France to the Minister of Marine at Paris, was taken on board
by the master and one of the supercargoes, and was afterwards found
concealed in the possession of the second supercargo. Both ship and
cargo were condemned.
139. Violation of Blockade
The Juffrow Maria Sckroeder, 3 C. Rob. 147
''Where a ship has contracted the guilt by sailing with an intention
of entering a blockaded port, or by sailing out, the offense is not purged
away till the end of the voyage ; till that period is completed, it is com-
petent to any cruisers to seize and proceed against her for that offense."
In this case the plea of remissness in the blockading force in permitting
vessels to go in or out, was held to avail, and the ship, which was a Prus-
sian one taken on a voyage from Rouen to Altona and proceeded
against for a breach of the blockade of Havre, was restored.
140. CoNTiNTjous Voyages
The Hart, 3 Wall. 559, 560
" Neutrals who place their vessels under belligerent control and en-
gage them in belligerent trade ; or permit them to be sent with contra-
band cargoes under cover of false destination to neutral ports, while
the real destination is to belligerent ports, impress upon them the
character of the belligerent in whose service they are employed, and
cannot complain if they are seized and condemned as enemy property.
See the preceding case, The Bermuda, 3 Wall, 514,
ft
APPENDIX XVn Clvii
The Maria, 5 C. Rob. 365
This was a case of a continuous voyage in the colonial trade of the
enemy. The Court reviewed former cases and asked for further proof
on the facts. On such further proof the court decreed restitution.
See The WiUiam, 5 C. Rob. 385.
141. Prizb and Prize Courts
The Ship La Manche, 2 Sprague, 207
This case held that captors are not liable for damages where the
vessel captured presents probable cause for the capture, even though
she was led into the predicament involuntarily, and by the mistakes
of the revenue officers of the captor's own government.
The Zamora, L. R. [1916], 2 A. C. 77
The British War Office in 1915, acting under an Order in Coimcil,
requisitioned before condemnation certain copper of the cargo of
the Zamora, a neutral Swedish vessel. The Court ignoring the Order,
so far as in conffict with international law, which by tradition and in
accord with the prize Act of 1864 was the law applicable in prize courts,
said: " If the court is to decide judicially in accordance with what it
conceives to be the law of nations, it cannot, even in doubtful cases,
take its directions from the Crown, which is a party to the proceedings.
It must itself determine what the law is according to the best of its
ability, and its view, with whatever hesitation it be arrived at, must
prevail over any executive order. Only in this way can it fulfill its
function as a Prize Court, and justify the confidence which other
nations have hitherto placed in its decisions."
INDEX
Abrogation of treaties, 241.
Abeolutely contraband, what articles
are. 329.
Accession, to treaty, 212.
Accretion, acquisition of territory
by, 112.
Acquisition of territorial jurisdic-
tion, 108.
Admiralty law, basis of international
law, 10.
Adhesion, to treaty, 212.
Ad r^erendum, 210.
Aerial jurisdiction, 130.
Aerial warfare, 280.
Aircraft, 130, 281. 318.
Africa, partition of, 100, 113, 114.
Agreements. See Treaties.
Aids to the memory, what they are,
185.
Aiz-la-Chapelle, treaty of, 22, 164,
175, 209.
Alabama case. See Geneva Arbitra-
tion.
Alaska, sale of. to the United States,
111; territorial waters of. 125, 126.
Aliens, rights of. as to naturalization,
134-138; jurisdiction over, 138-140.
Alternate use of. in signing treaties.
98. 176, 207.
Amalfitan tables. See Sea Laws.
Ambassadors, sending of, 16; juris-
diction of Supreme Court as to.
40; immunities of vessels canying,
129; office of, in early days, 162.
163; rules as to. 162-168; suite of,
168; who may send, 169; who
may be sent as, 170; credentials,
etc., of. 170; et seq.; ceremonial
as to, 173-177 ; functions of. 184-
186; termination of mission of.
186-188; immunities and privi-
leges of. 177-184.
American policies. 83-87.
Angary. 254. 355.
Anglo-Japanese Alliance. 214.
Appeal from prise courts, 40, 359.
Approbation, of treaty, 212.
Arbitration, Hague Convention, 223;
Permanent Court of, 224, zli. See
Courts of Arbitration, Geneva Ar-
bitration, Venesuela.
Argentine Republic, limitation of
armaments, 86.
Armed neutralities of 1780 and 1800,
23, 299, 326, 345.
Armed merchant vessels, attitude of
powers, 276 el seg., 342.
Annies, Instructions for United States,
appendix i et seq.
Armistices, 289. See Flags of Truce.
Army, within the jurisdiction of
another state, 144. 145. See Com-
batants.
Asylum. See Right of Asylum.
Austria, one of the Great Powers, 98 .
attitude of, at the Congress of
Troppau. 99; relations of. to the
Triple Alliance. 101; convention
of, as to the Sues Canal, 120; juria-
diction of, over foreign-born subjects.
133.
Auxiliary navy, 274.
A3>'ala, writer on International Law,
3. 33. 248.
Balance of power in Europe, 81-83.
Balloons, launching of projectiles,
etc.. from. 281.
Base of operations, neutral territory
as, 311.
Bays, as sIFecting jurisdiction, 118;
as affecting neutrality, 311.
Belgium, recognition of, 51, 54; neu-
tralisation of. 58. 100. 214. 300;
attitude of Great Powers as to. 100;
jurisdiction of, as to foreign-bom
subjects, 133; marriage. 134.
Belligerency, recognition of, 66-69.
Belligerents, non-hostile relations of,
286 et seq.; carriage of, 337.
Bentham, author, 8, 35.
Bering Sea, controversy as to, 125, IM.
olviii
INDEX
clix
Berlin Conference, attitude of, as to*
spheres of influence, 1 13.
Berlin Convention of 1906 and wire-
less telegraphy, 130.
Berlin Decree of Napoleon, 228, 345.
Berlin, treaties of, 209.
Bessarabia, cession of a portion of, 110.
Blockade, in case of United States of
Colombia, 04; pacific, 229; visit
and search in case of, 339; history
of, 344; conditions of existence of,
345; a war measure, 345; declara-
tion of, 346; notification of, 346;
must be effective, 347 ; cessation of,
348; violation of, 350; continuous
voyages in case of, 351 e< seq.
Bluntschli, writer on International
Law, 93, 148.
Bombardment, 271.
Boniface VIII, Pope, 17.
Booty, 256.
Boycott, 226.
Brasil, belligerency in case of, 65;
neutrality of, 316.
Briefs of the conversation, 185.
British Guiana, boundary line of, 85.
British Orders in Council of 1807. 228.
British South Africa Company, history
of, 61, 62.
Brunus, writer on International Law, 3.
Brussels Conference, 209.
Bulgaria, recognition of, 61.
Bureau of Information, 285.
Bynkershoek, writer on International
Law, 21, 35, 43, 122, 248, 303.
Calvo, writer on International Law,
36, 178, 214.
Canada, fisheries of, 124.
Canals, Sues, 120; Panama, 121;
Corinth, 121 ; Kiel, 121 ; neutraliza-
tion of, 301.
Canning, George, on the neutrality
of the United States, 303.
Canon law, 9, 17.
Capitulation, what it is, 290; in ex-
cess of aulJiority, 291.
Capture and ransom, 278.
Capture of hostile private property,
253, 278; goods as determined
by ownership, 326 et aeq.
Cartel ship, exemption of, from cap-
ture, 259 ; defined, 287.
Cartels, what they are, 205, 285, 287.
Cataoasy, mini9ter from Russia, 187.
Ceremonials, inequalities in, 98 ; mari-
time, 177.
Cessation of hostilities, 289 el mq., 294.
Ceoston, as a means of acquiring terri-
tory, 110, 111; of jurisdiction. 111.
Charge d'^aires, rules as to, 166, 167.
Charitable institutions, 252.
Chesapeake and Delaware Bays, juris-
diction over, 118.
Chile, belligerency in case of, 65 ; con-
vention with Argentine Republic as
to armaments, 86; right of asylum
in, 183.
China, pajrment of indemnity by,
64 n.; international law as applied
to, 4; jurisdiction of, over aliens.
139; termination of treaty of, with
Japan, 217; treaty of peace of, with
Japan, 295.
China, case of the, 338.
Chivalry, its influence on Interna-
tional Law, 18.
Churches. See Religion.
Citisenship, as affected by naturalisa-
tion, 133; dual, 134.
Civil law. See Roman Law.
Civil war, intervention in case of, 93 ;
when it begins. 237.
Classification of treaties, 213.
Clayton-Bulwer Treaty, as to the
Panama or Nicaraguan Canal, 121.
Cleveland, President, attitude of, as to
United States of Colombia, 64, 65;
neutrality proclamation of, 305 n.
Coal, when not to be supplied to bel-
ligerents, 315 ; as contraband of war,
330 : auxiliary ships carrying, 336.
Combatants, who are, 245.
Commencement of war, 236.
Commerce and sea laws, 19. .
Commerce, freedom of, 231.
Commissions of Inquiry, 222, xliv.
Common law, 10.
Condemnation for canying contra-
band, 333.
Conditionally contraband, what arti-
cles are, 330.
Conference, First International Peace,
26; Second, 28; Third. 28.
Conference of London of 1871, 41.
Conference on Limitation of Arma-
ment, 30, 277, cvii.
Conferences and congresses as a meads
of settling disputes, 222, 223.
Confiscation of p^perty in w^, 251. .
clx
INDEX
Congo Free State. See Kongo Free
State.
Congreflses of American states, 85.
Conquest, acquisition of title by, 109 ;
termination of war by, 293.
Consolato del Mare. See Sea Laws.
Constitution of the United States as
to ambassadors, etc., 40, 189; citi-
sens of the United States, 133 : nat-
uralisation, 133, 135 ; as to accept-
ing presents, etc., 189; treaties, 211.
Consulates, development of, 20.
Consuls, establishment of office of, 20 ;
jurisdiction of Supreme Court as
to, 40; exemptions of, 144; courts
of, 146-148 ; historically considered,
191; rank of, 192; nomination of
193; functions of, 194; powers of.
in EUutem and non-Christian states,
197; privileges and immunities of.
198; vacating the office of, 199;
appointment and examination of,
200.
Continuous voyages, rule as to, 351.
Contraband of war, capture of, 262,
321; what is, 329; penalty for
carrying, 333; difference between,
and unneutral service, 336; visit
and search for, 338 ; rule of, in case
of convoy, 343; relations of, to
blockade, 349 ; violation of blockade,
850; continuous voyages, 351;
prise and prise courts, 356.
Contract debts, confiscation of, 296.
Contributions, what they are, 254.
Convention and treaty, difference be-
tween» 203. See Treaties.
Conversion of merchant ships into war
ships, 274.
Convoy, vessels under, 343.
Corporations, status of, 61.
Correspondence, diplomatic and con-
sular, 337.
Courts, admiralty, 40; prise, 40, 356;
arbitration, 26, 224; international
justice, 225, cxzii.
Crete, pacific blockade of, 229.
Crew of merchant vessels, status of,
246, Ixxxiv.
Crimes, jurisdiction of consular court's
as to, 146-148 ; extradition for, 148-
152.
Crusades, influence of, 18, 20.
Cuba, intervention in case of, 92.
Custom, practice and usage, 39.
Customs of Amsterdam. See Sea Laws.
Dana, writer on International Law,
127, 357.
Days of grace, 229, 260, Ixxvi.
Death of diplomatic agent, proceed-
ings in case of, 186.
Debts, law as to, in time of war, 296.
Deceit involving perfidy, 271.
Declaration of blockade, 346.
Declaration of London. 1909, 28. 261,
xoii; in regard to determining na-
tionality of a vessel, 327 ; and con-
traband, 332 ; provision in regard to
hostile destination of contraband,
334; provision for cases in which
only part of cargo is contraband, 335 ;
in regard to the carriage of belliger-
ent persons, 337; and penalties for
unneutral service, 338, o ; conoemkig
destruction of neutral prises, 342;
inserts guarantee for legitimate ex-
ercise of convoy, 343; concerning
declaration of blockade, 346; con-
cerning notification of blockade, 346 ;
concerning cessation of blockade,
348; rules of, concerning the doc-
trine of continuous voyages, 354;
concluded, 360.
Declaration of Paris, agreed to by
the United States, • 42 ; provisions
of, 262, 274, 328, 329, 345; form
of, xxxi.
Declaration of war, 237.
Declarations, defined, 204, 215.
Defensive sea areas, 348.
Definitions, of international law, 3 ; of
a state, 47; of neutralised states,
58 ; of corix>ration8, 61 ; insurgents,
63; belligerents, 66; jurisdiction,
107; territorial domain, etc., 107;
prescription. 111; nationality, 131;
diplomacy, 161 ; treaties, 203 ; non-
hostile redress, 226 ; retorsion, 227 ;
reprisals, 227; embargo, 228; pa-
cific blockade. 229; war. 235; con-
tributions, 254; requisitions, 255;
booty, 256; belligerent occupation,
269 ; prisoners of war, 284 ; cartel,
285; cartel ship, 287; license to
trade, 288; capitulation, 290; neu-
trality, 299; neutralisation, 299;
contraband of war, 329; unneutral
service, 336; convoy, 3^; block-
ade, 344 ; prise, 356.
INDEX
clxi
de Lesseps, 120.
de Martens, G. F., writer, 36, 93.
148.
Denmark, intervention in affairs of,
88. jurisdiction of, over Danish
Sound and Two Belts, 119.
Denunciation of treaties, 218.
Destruction, of prise, 280, 342.
Devastation forbidden in war, 253.
Diplomatic agents, exemptions of, 144 ;
laws as to, 168-191.
Diplomatic negotiation as a means
of settling disputes, 221.
Diplomatic papers See State Papers.
Diplomatic relations, breaking off of,
186.
Discovery, a method of acquiring ter-
ritory, 108.
Discovery of America, 20.
Disputes, amicable settlement of,
33. 221-225; reservation of the
United States as to, 44 n., 83.
Dogger Banks affair, i222.
"Doyen" of the "Diplomatic Corps,"
167.
Draft of treaties, 207.
Drago Doctrine, 94, 240 n.
Dual oitisenship, 134.
"Due diligence," in the Alabama case,
322.
ESastem and non-Christian states,
powers of consuls in, 197.
East India Company, powers of, 61.
Educational institutions, exemption
of, 252.
Egypt, relations of, to Great Powers,
100 ; mixed courts of, 148.
Embargo, defined. 228.
Enemy merchant ships, status of, 228 ;
Hague Convention as to, 260. Ixxvi.
"Enemy's ships, enemy's goods,"
doctrine of, 22, 326.
Enemy subjects, status of, 245, 337.
English orders in council of 1806 and
1807. 346.
Enlistment of troops for belligerent
service, 311.
Envoys. See Ambassadors, Diplo-
matic Agents.
Equality of states. 74, 97-101.
Equity, a basis of international law, 10.
Elstuaries, as affecting jurisdiction,
118.
EZxchange, as a means of acquiring
territory, 110; of prisoners of war,
285.
Exequatur, form of, 194; what it re-
lates to, 193.
Exploration, exemption of vessels en-
gaged in, 259.
Exports, prohibited, 333.
Extradition, law as to, 148-151.
Extraterritoriality, what it is, 141, 142,
179.
False colors, use of. 272.
"Favored nation." See " Moat Favored
Nation."
Feudalism, influence of, 18, 20.
Financial transactions, intervention on
the ground of, 94.
Fiore, writer on International Law, 93,
148.
Fisheries, on the high seas, 123 ; Cana-
dian, 124 ; Bering Sea, 125.
Fishing vessels, exemption of, from
capture, 259.
Flags of truce, use of. 271, 286.
Foelix. writer. 148.
Foraging, when may be resorted to, 255.
Forbidden methods in war, 271.
Foreign-bom subjects, jurisdiction
over, 132.
Foreign Enlistment Act of Great
Britain. 304.
"Fourteen pomts," 295.
France, recognition of republic, 53;
relation of, to balance of power, 91 ;
one of the Great Powen, 98 ; friend-
ship of, with Russia, 101 ; sale of
territory to, by Monaco, 111; by
Sweden, 111; partition of Africa by,
114; jurisdiction of, over certain
gulfs, 118; treaty of, with England
as to enclosed watere, 118; con-
vention of, as to the Sues Canal, 120 ;
jurisdiction over foreign merchant-
men within her ports, 129; as to
foreign-bom subjects. 133; mar-
riage, 134; naturalisation, 135;
sale of forests of, by Prussians, 283 ;
termination of wan of, 294; rela-
tions of, to neutrality and neutralisa-
tion, 304 ; citisens of, on expedition
during Franco-German War, 312;
views of, as to horses as contraband,
331.
Freedom of commerce and navigation,
31.
clxu
INDEX
"Free ahips, free coods/' dootrine of,
22, 209, 326 et aeq,
Gallatin, Minister, liability of servant
of, to local jurisdiction, 181, 182.
Garfieldt President, testimony of for-
eign minister at trial of HHwasmn of,
181.
Gas, 272, cvii.
Genet, M., action of, as to privateers
in the United States, 303; oonsular
priae courts of, 357.
Geneva Arbitration, treaty as to, 208,
209 ; the Alabama case at the, 322.
Geneva Convention, revision of pro-
visions of, 26, 27; as lasring down
new rules, 41; sick and wounded
under, 285, 301 ; of 1906, 301, zzziii.
Izxviii.
Gentilis, writer on International Law,
3, 34, 35, 235.
Germany, Confederation, 57; differ-
ence of, with Venesuela, 85 ; one of
the Great Powers before 1914, 98;
a party to the Triple Alliance, 101 ;
partition of Africa by, 114; con-
vention of, as to the Sues Canal, 120 :
jurisdiction of, over foreign-bom
subjects, 133 ; over subjects residing
abroad and dual citisenahip, 134;
citisens of, in China, 139 ; volunteer
navy of, 274 ; sale of French forests
by, 283 ; attitude of, as to neutrality,
304 ; law of, as to prise money, 359.
Gift, as a means of acquiring territory,
110.
Good offices, settlement of disputes
by resorting to, 221.
Government of armies of United
States, appendix i et aeq.
Grant, President, proclamation of.
as to belligerent vessels leaving
United States ports, 315.
Great Britain, diplomatic papers of.
44 ; protectorates of, 59 ; power of,
over various companies, 61 ; recog-
nition of belligerency by, 67; rela-
tions of, to treaty of Utrecht, 82,
difference of, with Venesuela, 85;
intervention of, in affairs of Den-
mark, 88; relation of, to balance
of power, 91 ; one of the Great
Powers, 98; attitude of, at the
congress of Troppau, 99; Verona,
99; cession of **Horse-Bhoe Reef"
by, to United States, 110: sale of
territory to, by Netheriands, 111;
partition of Africa by, 114; treaty
of, with France as to enclosed
waters, 118; convention of, as to
the Sues Canal, 120; attitude of,
as to the three-mile limit, 122;
treaties of, as to Canadian fisheries,
124; Bering Sea, 125; territorial
waters jurisdiction act of. 122, 129 ;
jurisdiction of, over foreign-bom
subjects, 133; attitude of, as to
luituralisation, 136; jurisdiction of,
over aliens, 139; immunities of
diplomatic agents of, 184; protec-
torate of, over Ionian Islands, 217;
volunteer navy of, 275; guaranty
of. as to Sues Canal, 301 ; neutrality
laws of, 303; attitude of, as to
Teroeira affair, 312; Alabama case,
322; contraband, 330; convoy,
343; blockade, 344 et eeq.; contin-
uous voyages, 351; law of, as to
prise money, 359.
Great Lakes, regarded as "high seas.**
117.
Great Powers, enumeration of, 08;
policy of, 98-101.
Greece, in eariy intematioiuil law,
15 , recognition of, 51 ; intervention
in affairs of, 92, 214; attitude of
Great Powers as to, 99, 100, 301;
recall of citisens by, 130; pacific
blockade of, 220; volunteer navy
of. 275.
Gregory IX, relations of, to canon
law, 9, 17.
Grotius, Hugo, writer, 3, 21, 33, 43,
215, 248, 329.
Guaranty, treaties of, 214; as to
canals, 301.
Guerrilla troops, status of, 246.
Guidon de la Mar. See Sea Laws.
Gulfs, as affecting jurisdiction, 118.
Hague' Conference, First, 26, 246.
Hague Conference, Second, rules in
regard to commencement of war,
237, conventbn of, in regard to
the laws and customs of war, 245;
provisions of, in regard to public
property of the enemy, 251 ; in re-
gard to personal property of enemy
subjects, 253; in regard to enemy
merchant ships, 260 ; relative to sub-
INDEX
-Gtxin
marine cables, 263 ; relative to wire-
less telegraphy, 264; relative to
belligerent occuxmUon, 269; forbid-
ding lasring of contact mines, 272:
provisions as to exemption of pri-
vate property at sea, 278; flag of
truce, 286 ; in regard to neutral ter-
ritorial jurisdiction, 310; in regard
to regulations by a neutral for bel-
ligerent ships, 313; provisions for
internment in a neutral port, 313;
regulations concerning ordinary en-
try of belligerent vessels, 314; in
regard to vessels with prise, 317 ; in
regard to supplying and fitting out
belligerent vessels, 310; and list of
absolute contraband, 332; concern-
ing inviolability of postal corre-
spondence, 341 ; the International
Prise Court, 359.
Hall, William Edward, writer. 31. 36,
88, 142, 155, 180, 196, 289. 819.
Hanseatio League, treaty of, as to
tolls, 119. See Sea Laws.
Harbon, neutrality of, 311.
Harcourt, Sir V, writer, 89.
Hay-Pauncefote Treaty, 121.
He£fter, writer, 93.
"HinterUnd Doctrine," 109. 114.
Historical collections, exemption of,
252. Ixxi.
Holy Alliance, relations of. to Monroe
Doctrine, 83; to intervention, 92;
opposition of, to popular liberty, 99.
Horses, as contraband of war, 330.
Hospital flag, use of, 272.
Hospital ships, 259, Ixxviii.
Hostages, when last given, 9 n. ; in
case of ransom, 280.
Hostile destination for contraband,
333.
Hostile vessels, departure of, from
neutral port, 315.
Hostilities, commencement of, 236 et
eeq.; participation in, 336.
Humanity, intervention on the ground
of, 91-93.
Hungary, jurisdiction of, over for-
eign-bom subjects, 133.
Immunities and privileges of diplo-
matic agents, 177 et eeq. ; of consuls,
197-199.
Independence of states, 73, 81 et eeq.
Indians, suserainty of United States
over, 60: extinguishment of title of,
109.
Individuals under international law,
62.
Inequalities among states, oourt pre-
cedence, 98; matten of ceremonial,
98 ; weight of influence. 98 et eeq.
Institute of international law, as to
marine jurisdiction, 123; padfio
blockade, 229.
Instructions for United States Armies,
32, appendix i et §eq, ; to diplomatic
agents, 171, 206.
Insurgency, effect of , 63 ; U. S. pracU-»,
64.
Insurgents, who are, 63-65.
Intelligence, transmission of, 336.
Intercourse of states, 75.
Interdependence, 73, 81 ef eeq.
International Commission of Inquiry,
222.
International law, definition and gen-
eral scope of, 3-5; nature of, 6-11 ;
historical development of, in eariy
period, 13-16; in middle period,
17-20; in modem period, 21-30;
writers, 33-36; sources of, practice
and usage, 39; precedent and de-
cisions, 39 ; treaties and state papere,
41; text writera, 42; diplomatic
papere, 44; states, definitiona, 47;
legal persons having qualified status,
membera of confederations, etc., 57.
Internment of belligerent troops, 284,
310, 313. Uxiil.
Interpretation of treaties, 215-216.
Intervention in affain of other na^
tions, 88-95.
Ionian Islands, protectorate of, 24,
217.
Ireland, 58.
Islands, titie to, when formed in riven,
112.
Isolation of the United States, effect
of, 30.
Italy, attitude toward the United
States on question of sovereign po-
litical unity, 78; one of the Great
Powen, 98; relation of , to the Triple
Alliance, 101; partition of Africa
by, 113; convention of, as to the
Sues Canal, 120.
Jackson. President, attitude of, as to
the Falkland Islands, 62.
cbdv
INDEX
Japan, reoognition of, 50; freedom of
Emperor of, from suit, 143 ; treaty
of United States with, as to consular
functions, 107 ; termination of treaty
of, with China, 217; prise law of,
261, 341; treaty of peace of, with
China, 205.
Jettison of cargo, 16.
Jurisdiction of states, 74, 103 et seq.;
diplomatic agents, 177 et seq.; con-
suls, 101 ; over non-combatants,
247; neutral territorial, 300; in
case of blockade, 347; as to priie
courts, 356.
JtiM bellit early international law, 15.
Jus fetiale, defined. 8, 15.
Jus gentium, defined, 7, 16.
Jus inter gentes, defined* 8.
Jus nalunUe, defined, 7.
Justinian, writer, 7.
Keiley, Mr., case of, 170.
Kent, writer, 148, 273.
KlQber, writer, 148.
Kongo Free State, recognition of, 51 ;
neutralisation of. 58.
Kossta. case of, 137.
Lakes, change in, as affecting terri-
tory, 117.
Language used in treaties, 200, 210;
in diplomacy, 184 n., 210.
Law of nations, term long used, 8,
35.
Laws of Antwerp, See Sea Laws.
Laws of Ol^ron. See Sea Laws.
Laws of the Rhodians, fragment of,
15. See Sea Laws.
Laws of war, development, 235 ; sanc-
tion. 236; Hague, Iz.
League of Nations, 20, 81, 114, 223, 226 ;
Covenant, ex.
Leased territory, 112.
Legates, rules as to, 165 et seq. See
Ambassadors, Diplomatic Agents.
Letter of credence, form of, 172.
Letters, in diplomatic relations, 205.
Letters of marque. See Privateering.
Levies en masse, as combatants, 246,
284.
Liberia, recognition of. 51.
Licenses to trade, 288.
Lieber, Dr., writer, 7, 32 ; Code, 340.
Lien, right of state to enforce, 108.
Lima, Congress of 1847, 85.
Limitation of armaments in South
America, 86.
Lincoln, President, proclamation of,
as to blockade, 237, 347 n.
Loans of money, by neutral to bellig-
erent state, 320; by citisens of a
neutral state, 320.
London, Declaration of, 1000, 28;
naval conference, 1008-1000, 275.
327, 333, 335, 338, 343, 346. 354,
360, zdi.
Luxemburg, neutralisation of, 58, 300.
Madagascar, protectorate of, 50.
Mails and mail steamers, under neu-
tral flag, 341.
Mandates, 60, 114.
Mare clausum, rule of, as to Bering
Sea, 125.
Marine League. See Three-mile
Limit.
Maritime ceremonials, in salutes, 08,
177.
Maritime war. See Neutrality.
Marriage, as affecting nationality, 134 ;
performed by diplomatic agent, 185.
McKinley, President, message of, as
to Cuba, 02 ; proclamation of, as to
blockade. 347 n.
Mediation. See Good Offices.
Memoranda, what they are, 185, 204.
Messages, transmission of, 336.
Milan Decree of Napoleon, 345.
Military assistance not to be furnished
by neutral to belligerent, 310.
Mined areas, 340.
Mines, automatic contact, 272.
Ministers, jurisdiction of Supreme
Court as to, 40. See Ambassadors,
Diplomatic Agents.
Mississippi River, navigation of, 31.
Money, as contraband of war. 329.
Monroe Doctrine, history of, 83 et seq. ;
position of United States as to, 101.
Monroe. President, author of Monroe
Doctrine. 83.
Montenegro, recognition of, 51.
Moser. writer, 36, 43.
" Most favored nation,*' what it means
in treaties, 216.
Munitions of war, sales of, by neutral,
310. iSee Supplies of War.
Napoleon Bonaparte, relation of. to
Monroe Doctrine. 83 ; sale of Lou-
INDEX
clxv
isiana by, 111 ; Berlin Decree of, 228,
345 ; Milan Decree of, 345.
National Prize Court, 356.
Nationals defined, 132, 264.
Natural-bom subjects, jurisdiction
over, 132.
Naturalization, law as to, 134 et aeq.
Naval Conference of London, 1908,
International, 28. See Declaration
of London.
Naval war code of the United States,
322.
Navigation of rivers, 31, 116.
Navy, exemption of, from local juris-
diction, 145.
Netherlands, sale of territory by, to
Great Britain, 111; convention of,
as to Suez Canal, 120; armed
merchant vessels, 277.
Neutral flag, transfer of enemy vessel
to, 261.
Neutral goods, capture of, 262, 325
et 8eq.
Neutrality, regulations of 1793 in
regard to, 30; proclamation of, 67;
of goods, 262; submarine telegraphic
cables, 262, definition and history
of, 299 ; revocation of, 305 ; laws of
United States as to, 303, 315;
cxzxiv; as to departure of hostile
vessels from neutral ports, 315 ; as to
direct assistance, 318; obligations
of state, 320; ordinary commerce,
325; contraband, 329; unneutral
service, 336; visit and search, 338;
convoy in, 343; blockade, 344;
violation of blockade, 350; con-
tinuous voyages, 351 ; prize and
prize courts, 356.
Neutralization of states, 58 ; forms of,
299.
Noncombatants, who are, 247.
Non-hostile redress, what is. 226.
North Sea fisheries, convention as to,
123.
Norway, dissolution of, from Sweden,
51 ; union of, with Sweden, 58 ;
protectorate over, 59.
Notes, what they are, 185, 205.
Notification of blockade. 346 ; of war,
237.
Nuncios, rules as to, 165 et aeq. See
Ambassadors. Diplomatic Agents.
Object of war, 239.
Occupation, a method of acquiring
territory, 108-110; belligerent, 269.
Officers of merchant vessels, status
of. 246.
016ron, laws of. See Sea Laws.
"Open door " policy in the Far East,
32.
Oriental states, exemption of subjects
of Western states in, 146-148.
Oscar, King, address of, to Swedish
Riksdag. 51.
Pacific blockade, what it is, 229.
Panama, protectorate of, 59; canal
route, neutralisation of, 301.
Pan-American Conference of 1889,
223.
Pan-American Conferences, 1889,
1901-02, 1906, 86; Scientific Con-
gress. 86.
Paris, Treaty of. See Treaty of Paris.
Parole, release on, 285.
Passengers, capture of, 279.
Passport, form of, 141 ; of diplomatic
agent, 170, 187; given in time of
war, 287.
Peace of Westphalia, as an epoch in
international law, 21 ; relation of, to
the balance of power, 82; recogni-
tion of diplomacy by, 163 ; preceded
by armistice, 294.
Perdicaris and Raisuli, 32.
Perfidy. See Deceit.
Permanent Court of Arbitration , 224.
Permanent Court of International
Justice, 225, cxxii.
Personal property, status of, in war,
253.
Persons, jurisdiction over, 131 ; status
of, in war, 245.
Philippines, sale of, to the Um'tied
States, 111.
Phillimore, writer, 36, 148.
Pillage, prohibition of, 253.
Pious Fund arbitration, 224.
Poison, use of, forbidden in war, 271.
Poland, partition of, 23, 82. 111.
Political refugees. iSee Right of Asy-
lum.
Ports, neutrality of, 313.
Portugal, partition of Africa by, 114;
jurisdiction of, as to foreign-born
subjects, 132; relations of, to Ter-
ceira affair. 312.
Postal communication, cartels as to.
clxvi
INDEX
287 ; ooirespondence, invioUbilily
of, 341, Izzziii.
PoBtiiminium, what it is, 282.
Pradier-Fod6r6, writer. 36.
Preemption of contraband. 335.
Prescription, acquisition of territor>'
by, 111.
Prestation. See Angaiy.
Prisoners of war, treatment of, 284;
exchange of, 285 ; treaties as to, 296 ;
in World War, 286.
Privateering, history of, 273; action
of. M. Genet as to. 303.
Private international law, of what it
treats, 4, 132.
Private property of enemy, capture
of, at sea, 32, 262, 259, 325 et aeq. ;
inviolability of, on land, 262.
Private vessels, liability of, to cap-
ture, 259 ; exemption of, 259.
Prize, courts of, 28, 39 et seq.; dispo*
sition of, 279; salvage in case of,
283 ; taking of, into neutral waters,
315; law of, 356; procedure,
cxxxviii.
Prize law of Japan, 261.
Proc^'Verbaux. See Protocol.
Proclamation of the United States
as to the Declaration of Paris. 42 ;
of Queen Victoria as to belligerency,
67 ; of treaties, 208, 212 ; of Presi-
dent Washington, as to neutrality,
304 ; of nations during war between
Spain and the United States, 304,
305 ; as to departure of belligerents
on vessels from port, 315 et seq.
Projectiles, inflicting unnecessary suf-
fering, 271 ; from balloons, 280.
Promulgation of treaty, 208, 212.
Property, in general, 155 ; of the state,
155; of the enemy, status of, 251;
at sea, status of, 259 et aeq.
Protertorates, states under, 59;
jurisdiction in case of, 113; spheres
of influence, 114.
Protocol, what it is, 185, 204, 207,
212. 215, 218, 295.
Provisions, when may be supplied to
belligerents, 322, as contraband of
war, 331.
Prussia, attitude of, at the Congress
of Troppau, 99. See Germany.
Public buildings, protection of, in war,
252 et seq.
Public debt, stock held by enemy in, 254.
Public international law, of what it
treats, 4.
Public vessels, liability of, to capture,
259.
Pufendorf, writer, 3, 35, 148, 303.
Quarter, refusal of, 271, 284.
Rachel, writer, 36.
Radio Telegraph. 130, 262.
Radio telegraphic Convention, 41. See
Telegraph.
Railway plant, status of, in war, 251.
Ransom, 280.
Ratification of treaties, 210.
Real property, status of, in war, 252.
Rebellion, intervention in case of. 93.
Recognition, of new states, 49 et seq;
of belligerency. 66 et seq.
Reddaway. writer, 84.
Religion, protection of, 184, 252.
Repair, hostile character of ships of,
336.
Reprisals, defined, 227; World War,
242.
Requisitions, what they are, 255.
Retaliation, liability to, 284; when
forbidden, Worid War, 349.
Retorsion, defined. 227.
Right of .asyliun, on and for war ships,
128, 145, 146. 313; sovereign's
ftdtel, 144; in house of diplomatic
agent, 182. See Internment.
Rivers, in determining territory, 115;
as affecting jurisdiction, 116.
Roman law, a basis of international
law, 9, 16, as to alluvium, 112.
Roumania, recognition of, 51 , cession
of Bessarabia and a part of Turkey
to, 110.
Russia, call of, as to First International
Peace Conference, 25; suzerainty
of, 60 ; relation of, to the balance of
power, 91 ; one of the Great Powers,
98; attitude of, at the Congress of
Troppau, 99; friendship of, with
France, 101 ; sale of Alaska by, 111 ;
treaty of, with Turkey as to Bospho-
rus, etc., 119, convention of, as to
the Suez Canal, 119, 120; claim of,
as to Pacific Ocean, 125; volunteer
navy of, 275; attitude of, toward
wireless telegraphy, 264.
Russo-Japanese War, 222, 237, 264,
275, 295, 314. 341.
r
Dn)EX
clxvii
Safe-oonduct, what it is, 287.
Safeguard, what it is, 287.
Sale, transfer of territory by, 110.
Salutes, 177.
Salvage, granting of, 283.
Samoa, 60.
Scientific property work, exemption of,
252 ; work, vessels engaged in, 259.
Sea laws. Amalfitan tables, 19, 191;
ConsokUo del Mare, 19, 191. 326;
laws of Ol^ron, 19, 191: laws of
Wisby, 19, 191 ; Hanseatic League,
19, 39, 191 ; customs of Amsterdam,
19 ; laws of Antwerp. 19 ; Guidon de
la Mar. 19 ; Lex Rhodia, 15, 191.
Search. See Visit and Search.
Seisure. See Visit and Search.
Selden, writer, 21.
Self-preservation, intervention for, 88.
Serbia, recognition of, 51.
Servitudes, in case of Canadian fish-
eries, 124, different kinds of, 151.
Ship's papers, deposit of, in consul's
office, 195 ; what are required, 340.
Sick and wounded, treatment of, 301.
Sound dues, history of, 31, 119.
South African Republic, protectorate
of, 59 ; war in, 354.
South American states, policies of, 85 ;
husbands in, acquiring citisenship
of wife, 134 ; views of, as to extradi-
tion, 149.
Sovereign, exemptions and privileges
of, in foreign countries, 142.
Spain, relations of, to Treaty of
Utrecht, 82; interference in affairs
of, 92 i relations of, to Great Pow-
ers, 98: attitude of Congress of
Verona as to, 99; convention of,
as to the Sues Canal. 120; juris-
diction of, as to foreign-bom sub-
jects, 133; termination of treatv
of, with United States, 217; vessels
of, during war with the United
States, 228, 260 ; attitude of, as to
Declaration of Paris, 262. 274, 328.
Spheres of influence, theory of. 100.
114.
Spies, status of, 247. 286.
Sponsions, defined, 205, 291.
State, definition, 47 ; conditions of
existence, 47.
State officers, exemptions of. 144-140.
State papers, as a source of interna-
tional law, 41.
Statute of limitations, law of, as to
debts in time of war, 296.
Stock, held by enemy in public debt,
254.
Straits, jurisdiction of, 119.
Stratagems, use of, 272.
Strategic areas, 349.
Suarez, writer, 33.. 42.
Submarine cables, convention for
the protection of, 262; censorship
of, 336. See Telegraph.
Submarine vessels, 277, evil.
Sttb ape rait. See Sponsions.
Sues Canal. See Canals.
Sulphur, as contraband of war, 331.
Supplies of war, not to be furnished
b^ neutral to belligerent, 322;
ships carrying, 336 et seq. See
Munitions of War.
Supreme Court of the United States,
40, 43, 117.
Suspension of arms, 205, 277.
Suspension of treaties, 241.
Suzerainty, instances of, 59.
Sweden, dissolution of, from Norway,
51 ; relations of. to Great Powers,
98; sale of territory by, to France,
111; jurisdiction of, over foreign-
'bom subjects, 133; treaty of,
as to contraband, 335.
Switzerland, neutralization of, 24, 58,
300; jurisdiction of, over foreign-
born subjects, 133, 134: aircraft
in, 318.
Taxes, lien of state for, 108; upon
property of diplomatic agent, 183;
of enemy subjects, 254; collection
of, by an occupying state, 254, 282.
Telegraph, status of, in war, 251 ;
cables, 337; submarine and radio,
262.
Telephone, status of, in war, 251.
Terceira expedition, what it was, 312.
Termination of treaties, 216; of war,
293.
Territorial waters. See Three-mile
Limit.
Territory, acquisition of, 108; cession
of, jurisdiction over, 110; formed
by alluvium, 112; as determined
by rivers and l&kes, etc., 114 et seq.;
annexation of, 135.
Three-mile limit, jurisdiction as to,
122, 129, 310.
clxviii
INDEX
Transfer of territory, 110: of alle-
giance, 135 et seq.; of enemy vessel
to neutral flag, 261.
Transport, ships of, 336.
Treaties, as a source of intemationsl
law, 41 ; intervention, because of.
90 ; of United States as to Canadian
fisheries, 124; of extradition, 148:
definition of, 203; other forms.
203 et seq, ; negotiation of, 206 ,
validity of, 213; classification of,
213; of London. 1831. 1839, 214;
interpretation of, 215; terminatior
of. 216; denunciation of, 218;
abrogation or suspension of, 241 :
of peace, 294 ; as to canals, 301 ; as
to free vessels making free goods, 326.
Treaty of Berlin, suzerainties estab-
lished by. 60 ; relations of, to Great
Powers, 100; provision of. as to a
portion of Bessarabia, 110; closing
ports, 127 ; servitudes, 151 ; Kongo,
300.
Treaty of Paris, relations of, to Great
Powers. 100; provision of, as to
Bessarabia, 110; provision of, as
to Bosphorus, etc.. 119 ; relations of,
to Ottoman Empire, 214; provi-
sions of. as to privateering, neutral
goods, enemy's goods, and block-
ade. 262. 274.
Treaty of Versailles, 29, 85, 117, 211,
251, 295.
Trent, case of, 337.
Tribunal, of international law, 11, 225.
Triple Alliance, nations parties to, 101.
Tripoli, treaty of, with the Unit-ed
States as to settlement of disputes, 33.
Troops, internment of belligerent,
284, 310, 313; enlistment of, for
belligerent service. 305.
Troppau, Congress of, 99.
Truce. See Flags of Truce.
Turkey, recognition of, 50 ; suserainty
of, 60; application of balance of
power to, 91 ; policy as to territory'
of, 100; portion of, ceded to Rou-
mania. 1 10 ; treaty of, with Russia
as to Bosphorus, etc., 119, conven-
tion of, as to Suez Canal, 120;
letters of minister to. 171.
Twiss. Travers, writer, 36.
Ulpian, writer, 7.
Uniform of enemy, use of, 271.
United States, influence on interna-
tional law, 30; agrees to the
Treaty of Paris, 42 ; diplomatic pa-
pers of, 44; recognition of o^er
countries by, b\ et seq.; suzerainty
of, over Indians. 60; intervention
of, in case of Venezuela, 84 ; Cuba.
92: attitude of, as to the Monroe
Doctrine, 101 ; extinguishment of
Indian title by, 109; cession of
"Horse-shoe Reef " to. by Great
Britain, 110; sale of Alaska, Lou-
isiana, and the Philippines to. 111 .
territory of, formed by alluvium,
112; claim of, to jurisdiction over
Chesapeake and Delaware bays,
118; attitude of, as to sound dues,
119; Dardanelles, 119; Bering Sea,
125; jurisdiction of, over for-
eign-bom subjects, 132; as to
marriage. 134; laws of, as to nat-
uralization, 135; attitude of, as to
Koszta, 137; jurisdiction of, over
aliens, 138 ; courts of consuls of, 146 ;
attitude of, as to diplomatic agents,
180; diplomatic practice of, 188;
French language used in treaties
of, 209; making and ratification of
treaties of. 209-213; termination
of treaty of. with Spain, 217; atti-
tude of, as to embargo of 1807, 228 ;
vessels of, during war with Spain.
228; attitude of, as to blockade of
Crete, 229; Spanish vessels dur-
ing war with Spain, 260 ; Declara-
tion of Paris during war with Spain,
262. 273, 328; volunteer navy of.
275; destruction of vessels by, in
War of 1812. 280; attitude of, as
to ransom, 280 ; salvage, 283 ; prac-
tice of, as to exchange of prisoners.
285; guaranty by, of neutrality of
trans-isthmian canal, 301; neutral-
ity laws of, 303, 315 ; attitude of. as
to Alabama case, 322 ; treaties of, as
to free ships making free goods, 326
et seq.; articles enumerated by, as
contraband of war, 330 et seq.;
attitude of, as to convoy, 343;
blockade, 348; continuous vo3rages,
352 ; practice of, as to prize courts.
357 ei seq.; repeal by, of law as to
prize money, 359.
Unneutral service, what it is. 336.
Uti possidetis, doctrine of. 296.
INDEX
clxix
Utrecht, Peace of, as an epoch in in-
ternational law, 22, 82, 209.
Vattei, writer. 35, 91. 93, 148. 175.
215, 237, 303.
Veneauela, boundary line of, 84;
blockade of ports of, 85, 230 ; money
daims against, 85.
Verona, Congress of, 83, S9.
Versailles. See Treaty of.
Vessels, classes of, 126; nationality
of, how determined, 127; juris-
diction over, 127 ; status of, at sea.
259 et acq.: in port at outbreak
of hostilities, 260; voluntary and
auxiliary navy, 274; capture and
ransom of, 278 ; postliminium, 282 ;
cartel, 287; in case of neutral rela-
tions between states and individuals,
325 et acq.; visit and search of, 338.
See Privateering. Right of Asylum,
Armed Merchant, Submarine.
Victoria, Queen, neutrality proclama-
tion of, 67.
Victoria, writer. 33. 42.
Vienna, Congress of, settling of court
precedence by, 98 ; determination of
rank of state agents by, 164 et aeq. ;
language used in, 209 ; as to neutral-
ization, 300.
Visit and search, right of, 338 ; object
of, 339; method of, 339 et aeq,;
seizure in case of, 340 ; exemption.
341 ; destruction of prize, 280, 342.
Volunteer and auxiliary navy of,
Prussia, 274; Greece, 274; Russia,
275; Great Britain, 275; United
States. 275.
War, definition of. 235; commence-
ment of. 236; declaration of, 237;
object of, 239; general effects of,
240; persons affected by, 245:
combatants in. 245 ; noncombatants
in, 247; public property of the
enemy in, 251; real property of
enemy subjects in, 252; personal
property of enemy subjects in, 253 ;
vessels, 259; goods, 262; sub-
marine telegraphic cables, 262;
belligerent occuption during, 269;
forbidden methods in, 270; priva-
teers in, 273; voluntary and aux-
iliary navy in. 274 ; armed merchant
vessels in, 276; capture and ransom
in, 278; aerial, 280; posUiminium
in, 282; prisoners and their treat-
ment in, 284; non-hostile relations
of belligerents in, 286; methods of
termination of, 293.
Warlike expedition, what is a, 312.
War zones, 349.
Washington, President, attitude of, as
to neutrality, 304.
Waters, as affecting jurisdiction, 114.
Westphalia, Peace of. See Peace of
Westphalia.
Wharton, writer, 36.
Wheaton, writer, 36, 114, 148.
Wicquefort. 175.
Wireless telegraph. See Radio Tel-
egraph.
Wisby, laws of. See Sea Laws.
Wolff, writer, 35.
Women, nationality of, 134.
Woolsey, writer, 93.
Works of art, exemption of, 252,
Zouch, writer. 8, 35.
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